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EXPLANATORY   NOTE 


This  new  volume  in  the  "Debaters'  Handbook  Series"  is 
uniforrn  with  its  predecessors,  and  like  them,  offers  as  the 
chief  reason  for  compilation  the  manifest  need  among  debaters 
for  material  on  the  subject  under  treatment,  and  the  general 
lack  of  duplicate  library  copies  of  publications  in  which  ma- 
terial may  be  found.  The  best  articles  on  the  subject  have 
been  collected  and  reprinted  entire  or  in  part,  the  aim  being 
to  furnish  the  best  available  material  on  both  sides  of  the 
question,  without  unnecessary  repetition.  "Resolved  that  capital 
punishment  should  be  abolished"  is  the  adopted  form  of  statement 
for  the  question ;  so  it  will  be  apparent  that  the  affirmative  refer- 
ences give  arguments  against  and  the  negative  references,  argu- 
ments in  favor  of  capital  punishment. 


^ 


209172 


\ 


1 ' 


CONTENTS 

Bibliography 

Bibliographies   i 

General  Works  i 

Magazine  Articles 

General    2 

Affirmative   3 

Negative    7 

Selected  Articles 

Palm,  Andrew  J.     Capital  Punishment  

American  Journal  of  Politics      9 

Wiley,   Re\r.   Charles,   D.   D.    Retributive   Law   and   Capital 

Punishment American  Presbyterian  Review     10 

Garner,   James  W.    Crime   and  Judicial   Inefficiency 

Annals  of  the  American  Academy    10 

Barrows,    Samuel  J.     Legislative   Tendencies   as   to   Capital 

Punishment Annals  of  the  American  Academy     12 

Cutler,  J.  E.     Capital   Punishment  and  Lynching 

Annals  of  the  American  Academy     17 

Shipley,    Maynard.     Homicide    and    the    Death    Penalty    in 

Mexico Annals  of  the  American   Academy    22 

Shrady,    George.     Death    Penalty Arena    28 

Ferguson,  John.     Death  Penalty Canadian   Magazine    39 

Capital    Punishment    Denounced Charities    39 

Neuman,   B.  Paul.     Case  against  Capital   Punishment 

Fortnightly    Review    42 

Galbreath,  Charles  Burleigh.    Shall  the  State  Kill? '^ 

Friends'    IntelHgencer    56 

Buckley,   J.   M.     Death    Penalty Forum    73. 

Stillman,  James  W.    Abolish   the  Death   Penalty 

Green   Bag    84 


viii  CONTENTS 

Mosby,  Thomas  Speed.    Does  Capital  Punishment  Tend  to 

\       Diminish  Capital  Crime  ? Harper's  Weekly    84 

/JjSpitzka,    Charles.     Should    Capital    Punishment    Be    Abol- 
ished ? Harper's  Weekly    86 

Roberts,  W.  J.     Abolition  of  Capital  Punishment 

International  Journal  of  Ethics    87, 

\j  Heath,  Carl.    Reform  and  the  Death  Penalty 

International  Journal  of  Ethics    91 

Heath,   Carl.    Treatment  of   Homicidal   Crhnes , . 

■ International  Journal  of  Ethics    92 

McClure,    S.    S.     Increase    of    Lawlessness    in    the    United 

States    McClure    93 

^Maude,  W.   C.     Shall  We  Abolish  the   Death   Penalty  for 

.       Murder  ?  Month    97-^ 

W^Substitute  for  Hanging. « , Nation  loer 

7/Lilly,  W.  S.     In  Praise  of  Hanging New  Review  loi  "^ 

Cheever,   George   B.,   Hand,   Samuel   and   Phillips,  Wendell. 

Death  Penalty North  American  Review  103 n,^^^ 

Adelman,  Abram  E.     Capital  Punishment.' Public  131 

Qallows  in  America Putnam's   jMagazine  134 

MtGilvary,  E.  B.     Is  Capital  Punishment  Justified  ? 

/) Review;^of  Reviews     34 

TJoes  Capital  Punishment  Prevent  Convictions  ?  .>^fi 

Review  of  Reviews  136  . 

Vicars,  G.    Rayleigh.     Ought  Capital  Punishment  to  be  Abol- 
ished ?    Westminster   Review  137 

Hopkins,  T.  M.     Capital  Punishment:  Ineffectual  and  Mis- 
chievous     Westminster   Review  144 

Hort,  G.  M.     Emotion  as  a  Law-Maker :  a  Sociological  Sug- 
gestion     Westminster   Review  I44 

Heath.    Carl.     Homicidal    Crime    and    the    Death    Penalty 

Abroad Westminster   Review  146  lJ^ 

Ingram,  Advocate  C.  J.     Shall  We  Abolish  the  Death  Pen- 
alty?    Westminster  Review  1 56 

Heatii,    Carl.     Modern    Penology    and    the    Punishment    of 
Death Westminster  Review  166' 


UNIVERSITY^  \JN\V,        OF 

SELECTED  ARTICLES  ON 
CAPITAL  PUNISHMENT 


BIBLIOGRAPHY 


A  star  (*)  preceding  a  reference  indicates  that  the  entire  article  or  a  part  of 
it  has  been  reprinted  in  this  volume. 

BiBLIOGRARHIES 
Brookings,  W.  DuBois  and  Ringwalt,  Ralph  Curtis.  Briefs  for 

Debate,  pp.  57-9. 

Contains    good    brief. 
Ohio  State  Library  ^lonthly  Bulletin.  Vol.  I.  No.  10.  Ja.  '06.  pp. 

3-6. 
United  States  Bureau  of  Education.  Circular  of  information  No. 

4.  1893-  PP-  409-10. 
United  States.  54th  Congress,  ist  Session.  House  report  108.  pp. 

12-22. 

General  Works 

Bierce,  Ambrose.  Shadow  on  the  dial.  Death  Penalty.  Chap.  VIII. 
Bliss,  William  D.  P.  New  Encyclopedia  of  Social  Reform.  Death 

Penalty,  p.  363. 
Cheever,  George  B.  Defence  of  Capital  Punishment.  Wiley  and* 

Putnam,  New  York.  1846. 

Contents:  Essays  oja'^unishment  by  Death;  Argument  in  Re- 
ply to  J.  L.  O'Sulllvan;  Brief  Examination  of  a  Late  Work  en- 
titled "Thovights  on  the  Death  Penalty,"  by  Charles  E.  Burleigh.  / 

Du  Cane,  Sir  Edmund  Frederick.  Punishment  and  Prevention,' 
of  Crime,  pp.  28-9.  1885. 

Dymond,  Jonathan.  Essays  on  the  Principles  of  MoraHty.  pp. 
351-65.  1896. 

Encyclopedia  Americana,  Capital  Punishment.  Vol.  IV. 

Lalor,  John  J.  Cyclopedia  of  Political  Science.  Death  Penalty. 
Faustin  Helie.  Vol.  I.  pp.  721-4.  Prisons  and  Prison  Disci- 
pline. Fred  H.  Wines.  Vol.  III.  pp.  352-3. 

Livingston,  Edward.  Capital  Punishment.  In  Moore,  Frank. 
American  Eloquence.  Vol.  II.  pp.  225-36. 


:  K-'"'.'  '::  ,.2.'* '-SBLECTED  ARTICLES 

Mittermaier,  Karl  Josef  Anton.  Capital  Punishment,  ed.  by  John 
Macrae  Moir.  1865. 

Moore,  Frank.  American  Eloquence.  Capital  Punishment.  Ed- 
ward Livingston.  Vol.  IL  pp.  225-36. 

New  International  Encyclopaedia.  Capital  Punishment.  Vol.  IV. 
pp.  I7S-6. 

Ohio  State  Library  Monthly  Bulletin.  Vol.  I.  No.  10.  Ja.  '06. 

Has  valuable  statistics  on  capital  punishment  in  the  states  of 
this  country. 

Palm,  Andrew  J.  Death  Penalty :  a  Consideration  of'TlTe'  Ob- 
jections to  Capital  Punishment. 

Phillips,  Wendell.  Speeches,  Lectures  and  Letters,  2d  series. 
pp.  77-109.    Lee  and  Shepard,  Boston.  1891. 

Robespierre,  Maximilien  Marie  Isidore.  Against  Capital  Pun- 
ishment: a  speech  delivered  in  the  Constituent  Assembly, 
My.  30,  1791.  In  World's  Best  Orations.  Vol.  IX.  pp.  3326-9. 

Romilly,  Henry.  Punishment  of  death.  John  Murray,  London. 
1886. 

Shelley,  Percy  Bysshe.  Prose  Works.  On  the  Punishment  of 
Death.  Vol.  II.  p.  167.  1888. 

Sumner,  Charles.  Works.  Letter  to  a  Committee  of  the  Massa- 
chusetts Legislature,   F.    12,    1855.   Vol.   III.   pp.   527-8. 

United  States.  54th  Congress,  ist  Session.  House  report  108. 
Contains   many   valuable    statistics. 

Wines,  Frederick  Howard.  Punishment  and  Reformation.  Cap- 
ital Punishment,  pp.  50-69. 

World's  Best  Orations.  Against  Capital  Punishment.  M.  M.  I. 
Robespierre.  Vol.  IX.  pp.  3326-9. 

Magazine  Articles 

General 

Annals   of   the    American   Academy.    17:366-9.    Mr.   '01.    Death 

Penalty  as  a  Preventive  of  Crime. 
*Annals  of  the  American  Academy.  29:601-18.   My.  '07.   Crime 

and  Judicial  Inefficiency.  J.  W.  Garner. 
Contemporary  Review.  28:628-47.  S.  '76.  Capital  Punishment  in 

England.  Francis  W.  Rowsell.- 

Detailed  history  of  capital  punishment  in  England  from  Anglo- 
Saxon  period  to  1876. 


CAPITAL    BUNISHMENT  3 

Fraser's  Magazine,  'jz  -  232-5^.  F.  '66.  Review  of  Report  of  the 

Capital  Punishment  Commission.  J.  Fitzjames  Stephen. 
Green    Bag.   9:129-31.    Mr.   '97.   Death    Penalty  in   the   United 

States. 

Reprinted   from  Harper's  Weekly. 
Green  Bag.   11 :  15-6.  Ja.   '99.   Death   Penalty   in   Olden   Times. 

Florence  Spooner. 
Harper's  Magazine.   105 :  569-72.  S.  '02.  The   Headsman.  Agnes 

Repplier. 

Same   condensed  in  Current  Literature.   33:  418-9.   O.   '02. 
*McClure.    24 :  163-71.    D.    '04.   Increase   of    Lawlessness    in  the 

United  States.  S.  S.  McClure. 
♦North   American   Review.    133:534-59-    D-   '81.   Death   Penalty. 

George  B.   Cheever,   Samuel  Hand  and  Wendell   Phillips. 
North    American    Review.    144 :  221-2.    F.    '87.    Should    Women 

be  Hanged?    Helen  Mar  Wilks. 

Says  punishment  should  be  same  for  man  and  woman.  Op- 
posed to  use  of  gallows.  Does  not  discuss  justice  of  death 
penalty. 

Public  Opinion.  13:33-4.  Ap.  16,  '92.  Death  Penalty. 

Press  comments. 
Westminster  Review.  155:424-31.  Ap.  '01.  On  the  Abolition  of 

Capital   Punishment.   Mark  Drayton. 

Affirmative 

♦American  Journal  of  Politics.  2 :  323-32.  Mr.  '93.  Capital  Pun- 
ishment. Andrew  J.  Palm. 
American    Law   Review.   40:240-51.    Mr.-Ap.   '06.    Abolition    of 
Capital  Punishment  in  Italy  and  San  Marino.  Maynard  Ship- 
ley. 

Presents  evidence  to  show  "that  the  abolition  of  capital  pun- 
ishment has  not  resulted  in  an  increase  of  homicide  in  Italy;  but 
that  crimes  of  violence  in  general  are  fast  disappearing  before 
the  lecent  rapid  advances  industrially  and  educationally,  homicide 
having  already  become  almost  as  rare  in  some  parts  of  Italy  as 
in   the  New  England   states   of  our  own   country." 

American  Law  Review.  41 :  561-4.  Jl.-Ag.  '07.  Abolition  of  Capi- 
tal Punishment  in  France.  Maynard  Shipley. 

American    Law    Review.    43 :  321-34.    My.-Je.    '09.    Does    Capital 
'^^unishment  Prevent  Convictions?  Maynard  Shipley. 
Extracts  reprinted  in  Review  of  Reviews.   40:   219-20.   Ag.   '09. 


J     >. 


I 


4  SELECTED  ARTICLES 

American  Statistical  Association.  9:307-14.  S.  '05.  Results  of 
the  Practical  Abolition  of  Capital  Punishment  in  Belgium. 
Maynard  Shipley. 

American   Statistical   Association.    10 :  253-9.    Mr.   '07.    Homicide 
and  the  Death  Penalty  in  Austria-Hungary.  Maynard  Ship- 
ley. 
Quotes    official    statistics   to    show    "so   far  as   Austria-Hungary 

is   concerned,    there   is   no   ground   for   the  contention   that   capital 

crimes  have  increased  as  a  consequence  of  tlje  decline  of  capital 

executions." 

*Annals  of  the  American  Academy.  29 :  618-21.  My.  '07.  Legis- 
lative Tendencies  as  to  Capital  Punishment.  Samuel  J.  Bar- 
rows. 

*Annals  of  the  American  Academy.  29 :  625-9.  My.  '07.  Homi- 
cide and  the  Death  Penalty  in  Mexico.  Maynard  Shipley. 

Arena,  i :  175-83.  Ja.  '90.  Crime  of  Capital  Punishment.  Hugh 
O.  Pentecost. 

*Arena.  2 :  513-23.  O.  '90.  Death  Penalty.  George  F.  Shrady. 

Arena.  38 :  259-63.  S.  '07.  Anomaly  of  Capital  Punishment.  Thom- 
as Speed  Mosby. 

Arena.  41 :  525-34.  Ag.  '09.  I  Cannot  Keep  Silent.  Leo  H.  Tolstoi. 

^Canadian  Magazine.  2 :  467-75-  Mr.  '94.  Death  Penalty.  John 
Ferguson. 

^Charities.  15:248-9.  N.  18,  '05.  Capital  Punishment  Denounced. 

Quotations  from  report  of  Committee  on  Enforcement  of  Law, 
William  O.  Stillman,  Chairman,  at  Sixth  New  York  State  Con- 
ference  of   Charities   and   Correction. 

Congressional    Record.    23:      appendix    427-41.    Speech    against 

Capital  Punishment.  N.  M.  Curtis.  Delivered  Je.  9,  '92. 

Also  printed  separately  in  pamphlet  form  by  Government  Print- 
ing Office.  Very  full  argument  and  includes  many  and  lengthy 
quotations  from  prominent  men. 

Current    Literature.    29 :  190-2.    Ag.    '00.    Shall    Hanging    End  ? 
Josiah  Oldfield. 
Quoted  from  the  Humane  Review. 

Democratic  Review.     10 :  272-88.     Mr.    '42.    Wordsworth's   Son- 
nets on  the  Punishment  of  Death. 
Quotes   fourteen    sonnets   and    points   out    his    "false   argumt<  ts 

and   false  assumptions." 

Democratic  Review.   12:227-36.  Mr.  '43.  Gallows  and  the  Go  - 


CAPITAL    PUNISy-M&NT  5 

pel:      an    appeal   to    clergymen    opposing   themselves   to    the 

abolition  of  one,  iji  the  name  of  the  other. 

Confined  to  "disproving  the  existence  of  any  mandatory  Scrip- 
tural authority,  applicable  to  us  and  our  times,  requiring  the 
maintenance   of   the   death  punishment." 

Democratic  Review.   12:409-24.   Ap.  '43.   Capital  Punishment. 

Attempts  to  answer  and  expose  Cheever's  "Capital  Punishment." 
Democratic  Review.  19 :  90-103.  Ag.  '46.  An  essay  upon  Ground 

and  Reason  of  Punishment. 
Democratic  Review.  20 :  71-3.  Ja.  '47.  Capital  Punishment. 

Comment  on  Report  of  the  Select  Committee  on  Capital  I^unish- 
ment. 

Democratic  Review.  20 :  204-8.  Mr.  '47.   Capital  Punishment. 

Comment  on  Report  of  the  Select  Committee  on  Capital  Punish- 
ment. 

Democratic  Review.  20 :  300-6.  Ap.  '47.  Punishment  and  Penalty. 

Outlines  general  principles,  "which  the  wnsest  and  best  of 
modern  jurists  have  established  for  the  guidance  of  legislation. 
It  is  significant,  that  not  a  single  one  but  condemns,  positively 
and  emphatically,  the  penalty  of  death." 

Foreign    Quarterly    Review.    25 :  394-406.    Jl.    '40.    Victor    Hugo 

and  Sir  P.  Hesketh  Fleetwood  on  Capital  Punishment. 

Gives  a  short  analysis  of  "Last  Days  of  a  Condemned"  and 
quotations   from    it. 

^Fortnightly    Review.    52:322-33.    S.    '89.    Case    against    Capital 

Punishment.  B.  Paul  Neuman. 
^Friends'    Intelligencer,    sup.    O.    6,   '06.      Shall    the    State   Kill? 

Charles  Burleigh  Galbreath. 

An  address  delivered  before  the  Friends'  General  Conference 
at  Mountain   Lake   Park,    Md.   S.   3.   '06. 

Green  Bag.  10:50-2.  F.  '98.  Judicial  Killing.  Florence  Spooner. 

*Green  Bag.  10 :  92-6.  Mr.  '98.  Abolish  the  Death  Penalty.  James 

W.   Stillman. 
Green  Bag.  19 :  359-60.  Je.  '07.  Abolition  of  Capital  Punishment. 

James   H.  Vahey. 
Harper's  Weekly.  48 :  196-8.  F.  6,  '04.  State  Manslaughter.  W.  D. 

Howells. 

Shows  that  death  by  electricity  has  proved  not  merely  ap- 
palling  and    disgusting    but    ineffective. 

,*Harper's  Weekly.  50:1028-9.  Jl.  21,  '06.  Does  Capital  Punish- 
ment Tend  to  Diminish  Capital  Crime?  Thomas  Speed 
Mosby. 

Summarizes  opinions  of  attorney-generals  of  the  states  having 
death  penalty. 


6  SELECTED  ARTICLES 

\^   Harper's  Weekly.  50:1903.  D.  29,  '06.  Plato  on  Capital  Punish- 
ment:    a  Lesson  for  To-Day.  Maynard  Shipley; 

Harper's  Weekly.  51:890.  Je.   15,  '07.  Homiaide  and  the  Death 
Penalty  in   France.    Maynard    Shipley. 

Independent.  61:   1124-5.   N.  8,   '06.   Abolishing  the   Death   Pen- 
alty in  France. 
,  ^"-international  Journal  of   Ethics.    15:263-86.   Ap.   '05.   Abolition 
^  ^        of    Capital    Punishment.    W.    J.    Roberts. 

*International  Journal   of   Ethics.    17 :  290-301.   Ap.   '07.   Reform 
and  the  Death  Penalty.  Carl  Heath. 

^International  Journal  of   Ethics.    18:409-17.  Jl.   '08.   Treatment 
of  Homicidal  Criminals.  Carl  Heath. 

Literary   Digest.   33:711-2.   N.   17,   '06.   End   of    Capital   Punish- 
ment in  France. 

Living  Age.  258:    349-57.  Ag.  8,  '08.  Government  by  Executions. 
Leo  Tolstoy. 

North    American    Review.    62 :  40-70.    Ja.    '46.    Punishment    of 
2/^    Death. 

Reviews  and  replies  to  arguments  in  reports  and  boolvs. 

North   American  Review.   116:138-50.  Ja.  'jt^.   Rationale  of  the 
Opposition  to  Capital  Punishment.  E.  S.  Nadal. 

Outlook.  90:1-3.  S.  5,  '08.  Russian  Torture  Chamber, 

Potters   American   Monthly.    18:145-52.   F.   '82.   Death    Penalty. 
Charles  T.  Jerome. 

♦Public.    10:102-3.    My.   4,   '07.    Capital    Punishment    Abram    E. 
Adelman. 

*Putnam's   Alagazine.   13 :  225-35.   F.   '69.   Gallows  in   America. 

Reader.  9:383-92.  Mr.  '07.  Thou  Shalt  Not  Kill.  Brand  Whit- 
lock. 

Review  of  Reviews.  34 :  368-9.  S.  '06.   Capital   Punishment   and 
Capital  Crime. 
Summary    of    Mosby's    article    in    Harper's    Weekly.    50:    1028-9. 

Jl.   21,  '06. 

♦Review  of  Reviews.  40:219-20.   Ag.  '09.  Does  Capital   Punish- 
ment Prevent  Convictions? 
Extracts  from  American  Law   Review.   My.-Je.    '09. 


CAPITAL    PUNISHMENT  7 

Westminster   Review.  8i :  185-95.   Ap.   '64.   Prerogative   of    Par- 
don and  the  Punishment  of  Death. 
Review  of  articles  and  books. 

Westminster  Review.  91 :  34-48.  Ja.  '69.  Our  Criminal  Procedure, 
especially  in  Cases  of  Murder. 
Condemns  system  of  trial   in  England. 

Westminster  Review.  91 :  429-36.  Ap.  '69.  Mr.  Mill's  Speech  on 
Capital  Punishment. 

*  Westminster  Review.   143 :  561-6.  Mr.  '95.   Ought  Capital  Pun- 

ishment to  be  Abolished?     C.  Rayleigh  Vicars. 

*  Westminster   Review.    155:144-9.   F.   '01.   Capital    Punishment: 

Ineffectual  and  Mischievous.  T.  M.  Hopkins. 

Westminster  Review.  165 :  512-6.  My.  '06.  Is  Capital  Punishment 
Defensible?  Chester  Warren. 
Future  state  argument  is  concise. 

*Westminster  Review.  168:178-86.  Ag.  '07.  Emotion  as  a  Law- 
Maker.  G.  M.  Hort. 

*Westminst«r  Review.  169:333-41.  Mr.  '08.  Homicidal  Crime 
and  the  Death  Penalty  Abroad.  Carl  Heath. 

♦Westminster  Review.  170 :  325-9.  S.  '08.  Modern  Penology  and 
the  Punishment  of  Death.  Carl  Heath, 

Reply  to  Westminster  Review.  Jl.  '08.  Completes  article  of 
Westminster   Review.   Mr.  '08. 

Westminster  Review.  172 :  96-9.  Jl.  '09.  Argument  for  Abolition  of 

Capital  Punishment.  Cosmo  G.  Romilly. 

Contains   argument   from   Thucs^dides,   iii,  .45-6. 

Negative 

♦American  Presbyterian  Review.  20:414-31.  Jl.  '71.  Retributive 
Law  and  Capital  Punishment.  Rev.  Charles  Wiley,  D.  D. 

*Annals  of  the  American  Academy.  29 :  622-5.  My.  '07.  Capi- 
tal Punishment  and  Lynching.  J.  E.  Cutler. 

Arena.  21 :  469-72.  Ap.  '99.  Failure  of  the  Death  Penalty.  C.  G. 

Garrison. 

Gives  list  of  states  and  countries  where  capital  punishment  is 
without  qualification,  where  abolished,  where  life  imprisonment 
may  be  substituted  by  jury,  where  like  discretion  is  given  to  trial 
court. 


8  SELECTED  ARTICLES 

Bibliotheca  Sacra.  4 :  270-323 ;  435-70,  My.,  Ag.  '47,  Capital  Pun- 
ishment.  Daniel  R.  Goodwin. 

Blackwood's   Magazine.  27:865-78.  Je.  '30.  Qn  the  Punishment 
of  Death. 

Blackwood's    Magazine.    58 :  129-40.   Ag.   '45.    On    Punishment. 
Protests    against    "the    reasoning    which    would    divest    punish-r 

ment    of    its    proper    and    distinctive    cliaracter,    wliich    spreading 

about  wealc  and  effeminate  scruples,  would  paralyse  the  arm  which 

bears  the  sword  of  justice." 

Eraser's   Magazine.  69 :  753-72.  Je.  '64.   Capital  .Punishments.  J. 

Fitz James  Stephen. 

Discusses  these  questions:  Oujght  capital  punishment  to  be  in- 
flicted under  any  circumstances  whatever?  Ought  any  alteration 
to  be  made  in  the  definition  of  the  crime  for  which  it  is  inflicted; 
namely,  Wilful  murder?  Ought  any  alteration  to  be  made  in  the 
present   administration   of  the  prerogative   of  pardon? 

*Forum.  3:381-91.  Je.  '87.  Capital  Punishment.  J.  M.  Buckley. 

*Harper's  Weekly,  53 : 8.  Jl.  3,  '09.  Should  Capital   Punishment 
be  Abolished.  Edward  Charles  Spitzka. 

*Month.  65 :  168-79.   F.   '89.   Shall   We  ^Abolish   tlye   Death   Pen- 
alty for  Murder?  W.  C  Maude.  "  * 

Nation.  8 :  166-7.  ^^'*-  4'  '^-  Death  Penalty. 

*Nation.  16 :  193-4.  Mr.  20,  '7^.  Substitute  for  Hanging. 

Nation.   16:213-4.   Mr.  27,  'js-    Argument  against  Capital   Pun- 
ishment. 

Nation.  24 :  263-4.  My.  3,  '77.  Crime  and  Hanging  in  Maine. 
Gives   history  of  capital  crime  and  its  punishment   in  Maine. 

New  Englander.  i :  28-34.  Ja.  '43.  Capital  Puiji^hment. 

New   Englander.   3  i  562-6.   O.   '45.    Right   ofv  Civil    Government 
over  Human  Life. 

New^  Englander.  4:563-88.   O.  '46.   Shall   P  -'   ^-  Abol- 

ished? L.  B. 

*New  Review,  it  :  1^-200.  Ag.  '94.  In  P«-aise  of  Jriangmg.  W.  S. 
Lilly. 

*Review  of   Review?.  21 :  608.   My.  '00.   Is   Capital   Punishment 
Justified?  Dr.  E.  B.  McGilvary. 

Southern  Literary  Messenger.   18:650-4.  N.  '52.  Death   Punish- 
ment. D.  S.  G.  C. 

♦Westminster  Review.   170:91-8.  Jl.  '08.  Shall  We  Abolish  the 
Death   Penalty?  Advocate  C.  J.  Ingram. 
A  reply  to  Mr.   Carl  Heath   (Westminster  Review.   Mr.   '08). 


SELECTED  ARTICLES 

American  Journal  of  Politics.  2:323-32.  March,  1893. 

Capital  Punishment.  ,  Andrew  J.  Palm. 

It  needs  no  extraordinary  judgment  to  comprehend  the  truth 
that  if  government  wishes  to  teach  that  human  life  is  sacred 
it  must  not  set  the  example  of  deliberately  destroying  it,  x^s 
well  might  it  steal  from  the  thief  or  burn  the  house  of  the  in- 
cendiary as  to  snuff  out  a  human  life  to  teach  that  human  life 
is  sacred  and  should  be  held  inviolable.  The  evil  force  of  bad 
example  is  the  strongest  argument  that  can  be  made  against 
the  death  penalty  and  in  itself  should  be  sufficient  to  annul  the 
law  of  life  for  life  in  every  civilized  country  on  the  globe.  The 
Quakers  believe  in  the  sacredness  of  human  life  and  they  con- 
sistently and  persistently  refuse  to  make  their  actions  belie 
their  belief.  They  refuse  to  go  to\  vtar  and  refuse  to  assist 
in  putting  men  to  death  either  legally  or  illegally  and  the  re- 
sult of  this  teaching  for  centuries  is  that  Oyyikers  do  not  rom- 
mit  murder.  The  man  who  has  proper  respect  for  the  rights 
of  property  needs  no  law  to  prevent  him  from  taking  his  neigh- 
bor's goods.  The  man  who  has  proper  reverence  "for  human  life 
needs  no  law  to  restrain  his  hand  from  murder,  but  he  who 
would  argue  *'-  -'high  regard   for  human  life  can  be  in- 

stilled by  t  ^idnded  executioner,  legal  though  his  mur- 

derous trade  may  be,  shou'd  be  sent  to  an  institution  for  the 
feeble-minded. 

Under  the  old  Jewish  law  the  violation  of  every  command- 
ment but  one  was  punishable  with  death  and  when  it  has  been 
shown  that  according  to  the  Old  Testament  we  should  abolish 
slavery  and  polygamy  and  cease  to  kill  the  wife  who  believes 
in  a  different  god  from  the  one  adored  by  her  husband,  th^n 
it  will  be  time  to  advocate  capital  punishment  for  murder  on 
a  Hebraic  basis.  Though  our  early  fathers  were  a  savage  peo- 
ple, the  law  of  death  for  murder,  so  emphatically  enjoined,  was 


10  SELECTED  ARTICLES 

flagrantly  violated,  and  even  they,  ignorant  and  savage  as  they 
were,  were  better  than  their  cruel  law.  If  the  law  of  life  for 
life,  as  laid  down  by  Moses,  was  good,  it  surely  should  have 
been  carefully  observed  in  those  early  days,  and  yet  Cain  was 
a  murderer  as  were  Moses,  Lamech,  David,  Simeon,  and  Levi, 
and  yet  not  one  of  them  was  made  to  atone  for  his  crime  by 
giving  up  his  life.  The  law  seems  to  have  been  a  failure  even 
then  as  it  has  been  in  all  ages  since. 

American  Presbyterian  Review.  20:414-31.  July,  1871. 

Retributive  Law  and  Capital  Punishment.     Rev.  Charles 
Wiley,  D.  D. 

We  think  it,  in  fact,  one  of  the  features  of  degeneracy  of 
the  present  age,  that  the  sentiment  of  national  justice  appears 
to  be  so  feebly  recognized.  It  is  this  sentiment  that  lies  at  the 
foundation  of  all  vigorous  administration  of  law.  It  presides 
at  the  first  formation  of  law.  It  sustains  the  judge  upon  the 
bench.  It  fortifies  and  supports  the  whole  process  of  criminal 
adjudication,  and  to  this,  as  we  have  already  said,  we  shall 
have  occasion  to  appeal,  in  the  sequel  of  our  subject,  as  hav- 
ing an  important  place  in  any  sound  views  that  may  be  taken 
of  the  question  of  capital  punishment.  .  .  .  We  advocate  the 
practice  of  capital  punishment  on  the  broad  principle  that  it 
is  in  accordance  with  the  clearest  dictates  of  natural  justice.^^. 


.Annals  of  the  American  Academy.  2gr6oi-i8.  May,  1907. 

Crime  and  Judicial  Inefficiency.    James  W.  Garner. 

Ex-President  Andrew  D.  White,  in  a  recent  address  at  Cor- 
nell University,  declared  that  as  a  result  of  extensive  studies 
carried  on  through  a  long  period  of  years  and  in  all  parts  of 
the  union  he  had  become  convinced  that  the  United  States  leads 
^  e  civilized  world,  with  the  exception  perhaps  of  lower  Italy 
ai.  1  Sicily,  in  the  crime  of  murder  and  especially  of  unpunished 
murders. 


CAPITAL    PUNISHMENT 


II 


The  truth  of  this  severe  arraignment  is  easily  established 
by  reference  to  the  statistics  of  crime  in  this  and  other  coun- 
tries. The  appalling  increase  in  the  one^ crime  of  murder  in 
the  United  States  is  apparent  from  the  following  table  com- 
piled by  the  Chicago  Tribune  and  published  in  its  issue  of  De- 
cember loth  last. 


Year 

Number 

of  murders 

and 

homicides 
in  the  U.  S. 

Number 
for  each 

million  of 
people. 

Number  of 
executions 
in  the  U.  S. 

Numbei  "^ 
of  murders 

and 
homicides 

to  each 
execution 

Number 

of 
lynchings 

1885 

1.808 
1,499 
2,335 
2,184 
3,567 
4,290 
5.906 
6,791 
6.615 
9.800 
10.500 
10.652 
9,520 
7.840 
6.225 
8,275 
7.852 
8,834 
8,976 
8,482 

32.2 
26.1 
39.8 
36.4 
58. 2 
68.5 
92.4 
104.2 
99  5 
144.7 
152.2 
151.3 
132.8 
107.2 
83.6 
108.4 
100.9 
111.7 
112 
104.4 

108 
83 
79 
87 
98 
102 
123 
107 
126 
132 
132 
122 
128 
109 
131 
117 
118 
144 
124 
116 

17 
18 
29 
25 
36 
42 
56 
63 
52 
73 
79 
87 
74 
72 
S7 
71 
67 
61 
72 
73 

181 

1386        

133 
125 

1887 

1888           

144 

1889 

175 

1890        

123 

1891 

19"? 

1892     

230 

1893 

2C0 

1894 

189 

1895 

166 

1896    

1^1 

1897 

1898      

166 

127 

1899 

107 

1900 

115 

1901 

135 

1902 

96 

1903           .   .. 

1(4      ,' 

1904...   

87 

Total 

131,951 

2.286 

57 

2  917 

< 

. 

It  will  be  seen  from  the  above  table  that  within  the  space 
of  twenty  years  the  number  of  homicides  has  increased  nearly 
400  per  cent ;  that  the  proportion  of  thirty-two  homicides  to 
each  million  of  thew  population  has  grown  to  one  hundred  and 
four,  and  that  the  number  of  legal  executions  has  remained 
substantially  what  it  was  when  the  number  of  homicides  was 
only  one-fourth  as  great  as  now.  Compared  with  conditions  in 
other  lands,  the  situation  in  the  United  States,  as  revealed  by 
the  statistics  quoted  above,  is  not  only  disgraceful  to  American 
civlization,  but  is  highly  serious  and  deserves  the  thoughtful 
consideration  of  all  good  citizens.  As  against  nearly  9,000  homi- 
cides in  the  United   States  in   1903,   only  321   were   reported  in 


12  SELECTED  ARTICLES 

the  German  Empire,  with  approximately  sixty  mirlHori  inhabi- 
tants; only  322  in  England  and  Wales,  with  a  population  of 
thirty-two  and  a  half  million;  526  in  France,  with  a  population 
of  thirty-eight  million,  and  61  in  the  Dominion  of  Canada,'  with 
a  population  of  five  million.  With  112  homicides  to  each  million 
of  the  population  in  the  United  States  in  1903,  England  and 
Wales  had  less  than  10  (1902),  France  13^  (1899),  the  Ger- 
man Ejnpire  less  than  5  (1899),  and  Canada  about  12  (1903). 
In  the  city  of  Chicago  in  1906  one  hundred  and  eighty-seven 
homicides  were  reported,  as  against  twenty-four  in  London,  with 
a  population  three  times  as  great,  twenty-two  in  Paris  and  forty- 
four  in  Berlin,  including  attempted  murders.  The  worst  feature 
about  the  situation  in  the  United  States  is  the  small  number 
of  convictions  and  executions,  the  latter  being  but  little  more 
than  one  per  cent  of  the  homicides,  one  in  seventy-three  (1904), 
while  the  number  of  lynchings  exceeds  the  number  of  legal 
executions.  With  187  homicides  in  Chicago  last  year,  there  were 
but  two  cases  of  capital  punishment,  and  the  Cook  County  jail- 
er informs  me  (April,  1907)  that  there  are  no  murderers  await- 
ing execution. 

Annals  of  the  American  Acadeniy.  29:618-21.  May,  1907. 

Legislative  Tendencies  as  to  Capital  Punishment. 
Samuel   J.   Barrows. 

Public  sentiment  in  regard  to  the  infliction  of  the  death 
penalty  in  the  United  States  shows  itself  both  in  the  enactment 
of  law  and  in  the  violation  of  law.  In  the  violation  of  law  it 
takes  the  form  of  lynching.  It  is  not  my  purpose  to  speak  of 
the  lawless  use  of  capital  punishment.  Two  governors  of  south- 
ern states,  Governor  Jelks,  of  Alabama,  and  Governor  Aycock, 
of  North  Carolina,  in  1903  pointed  out  to  their  respective  legis- 
latures that  lynching  instead  of  furnishing  any  social  protection 
actually  becomes  a  great  moral  danger;  for  it  leads  to  the  tak- 
ing of  the  life  of  innocent  people.  Mob  murder  is  not  justified 
by  statute  but  little  has  been  done  by  statute  to  prevent  it.  Two 
things  are  important  to  note  in  regard  to  it:  First,  that  lynch- 
ing does  not  occur  in  the  states  that  have  abolished  capital  pun- 


CAPITAL    PUNISHMENT  13 

ishment — Michigan.  Rhode  Island,  WisQonsin.  Maine.  In  no 
states  is  the  respect  for  human  life  held  more  sacred  by  the  peo- 
ple than  in  those  states  where  it  is  held  most  sacred  by  the  law. 
Secondly,  as  was  said  by  Governor  Aycock,  of  North  Carolina, 
"the  crimes  for  which  this  summary  punishment  is  meted  out 
do  not  decrease." 

Setting  aside  these  lawless  hysterical  spectacles  of  torture, 
the  result  of  mob  vengeance,  which  constitute  a  terrible  reproach 
to  the  civilization  of  our  country,  what  are  the  cooler,  saner 
tendencies  of  modern  legislation  concerning  the  death  penalty? 

1.  With  a  single  exception,  the  states  of  the  Union  which 
have  abolished  the  death  penalty  show  no  disposition  to  re- 
store it.  Michigan  abolished  the  death  penalty  in  1847,  Rhode 
Island  in  1852,  Wisconsin  in  1853,  Maine  abolished  it  in  1876, 
restored  it  in  1883,  and  again  abolished  it  in  1887.  Thus  in  Mich- 
igan it  has  been  abolished  for  sixty  years,  and  in  two  other 
states  for  more  than  fifty  years.  During  that  time  the  condi- 
tions of  civilization  have  been  much  modified  in  Michigan  and 
Wisconsin,  passing  as  they  have  done  from  the  ruder  condi- 
tions of  frontier  communities  and  development  into  states  of 
great  power  and  influence.  Without  invoking  statistics  as  to  the 
influence  of  the  abolition  of  the  death  penalty  upon  crime,  a 
subject  outside  of  the  special  range  of  this  article,  it  is  sufficient 
to  point  out  that  these  states  have  discovered  no  reason  for  re- 
pealing the  laws  which  have  been  in  existence  for  more  than 
half  a  century.  Colorado  is  the  only  state  in  which  the  death 
penalty  has  been  restored.  It  was  abolished  in  1897,  but  as  the 
result  of  a  lynching  outbreak  in  1900,  was  restored  in  1901,  but 
under  the  amended  law  the  jury  fixes  the  penalty  for  murder 
as  death  or  life  imprisonment. 

2.  -  A  marked  tendency  in  the  United  States  is  toward  the 
abolition  of  public  executions.  Publicity  was  formerly  regarded 
of  the  greatest  importance.  It  gave  an  exemplary  character  to 
the  punishment.  Even  after  death  the  body  of  the  criminal  was 
exposed  on  the  gibbet  for  weeks  as  a  warning  to  malefactors. 
This  feature,  once  considered  important  and  necessary,  is  now 
regarded  as  more  harmful  to  society  than  healthful.  The  prac- 
tice of  gibbeting  the  criminal  has  long  since  been  abandoned; 


14  SELECTED  ARTICLES 

# 
the  practice  of  public  executions  is  gradually  following  it.  As 
the  result  of  a  dramatic  exploitation  by  the  sheriff  of  Boston, 
of  a  criminal  executed  in  the  Charles  Street  Jail,  which  was 
turned  into  a  vast  theatre  to  see  the  •  execution,  the  people  of 
that  state,  protesting  against  this  form  of  legal  vaudeville,  en- 
acted that  all  executions  should  be  private. 

Since  1903  several  states  have  enacted  laws  providing  that 
persons  convicted  of  offenses  punishable  with  death  should  be 
executed  in  the  state  penitentiary  or  under  conditions  of  com- 
parative privacy.  New  Mexico  enacted  that  execution  should 
take  place  within  an  enclosure  before  not  over  tw^enty  persons. 
North  Dakota  passed  a  similar  law.  Governor  Chamberlain, 
of  Georgia,  recommended  that  all  executions  should  take  place 
in  the  penitentiary,  out  of  hearing  and  out  of  sight  of  all  ex- 
cept officials,  and  such  a  law  was  passed. 

Arkansas,  in-  1906,  decided  that  executions  should  take  place 
in  the  county  in  which  the  crime  was  committed,  and  also  amend- 
ed its  law  so  that  executions  of  persons  convicted  of  ^^ape  are 
not  to  be  public. 

The  argument  for  public  executions  at  the  stat*  penitentiary 
was  presented  by  Governor  Beckham,  of  Kentucky,  in  his  mes- 
sage to  the  legislature  in  1906 :  **I  recommend  that  you  provide 
that  a-ll  executions  of  the  death  penalty  be  done  in  the  Frankfort 
Penitentiary.  The  hanging  of  a  man  in  the  community  where 
he  is  tried  produces  a  sensation,  a  nervousness  and  excitement 
upon  the  part  of  the  people,  and  it  has  a  brutalizing  effect  upon 
the  large  numbers,  in  spite  of  the  law,'^who  witness  it." 

3.  Still  another  tendency  of  American  legislation  is  to  sub- 
stitute the  electric  chair  for  the  gallows,^  This  was  introduced 
first  in  New  York  and  has  been  followed  in  Massachusetts,  Ohio, 
New  Jersey,  and  a  bill  to  this  eft'ect  is  before  the  legislature 
of  Minnesota.  The  adoption  .of  this  form  of  the  death  penalty 
which,  for  want  of  a  better  word,  we  seem  forced  to  call  "elec- 
trocution," is  urged  on  the  ground  that  it  is  instantaneous  and 
therefore  more  merciful  and  is  less  spectacular  than  the  gal- 
lows. It  takes  but  small  space  and  therefore  permits  more 
easily  private  execution.  Other  prisoners  are  not  disturbed  or 
excited  by  the  erection  of  the  gallows.     All  of  these  arguments. 


CAPITAL    PUNISHMENT  15 

it  will  be  seen,  are  in  the  direction  of  softening  and  mitigating 
the  harsher  features  of  the  death  penalty  hy  relieving  it  of  all 
aspects  of  physical  torture,  and  by  removing  its  exemplary 
character.  Opponents  of  this  change  have  pointed  out  that  when 
all  these  aspects  of  capital  punishment  are  removed  there  is  very 
little  left  of  moral  value  in  the  punishment.  But  this  argument 
has  not  prevented  the  substitution  of  electrocution  for  hanging. 

4.  A  fourth  tendency  in  modern  legislation  is  to  reduce 
the  number  of  capital  crimes-  To  illustrate  this  it  is  not  neces- 
sary to  go  back  a  hundred  years  when,  under  English  law,  200 
offenses  were  included  in  the  list  of  capital  crimes.  More  re- 
markable does  it  appear  that  until  1894,  under  the  federal  laws 
of  the  United  States,  twenty-five  offenses  for  which  the  pen- 
alty was  death  were  catalogued  under  the  military  code;  twen- 
ty-two under  the"navnl  code ;  under  the  extra-territorial  juris- 
diction granted  to  consuls  by  section  4192  Revised  Statutes,  three 
offenses,  viz. :  Insurrection,  rebellion  and  murder,  and  under 
"•the  jurisdiction  of  the  civil  code  of  the  United  States  there 
were  no  less  than  seventeen,  namely:  '       " ' 

(i)  Mu#der;  (2;  iviurder  upon  the  high  seas;  (3)  Ma- 
liciously striking,  etc.  from  which  death  results;  (4)  Rap,e; 
(5)  Owner  destroying  vessel  at  sea;  (7)  Piracy;  (8)  Sea- 
man laying  violent  hands  on  his  commander;  (9)  Robbery, up- 
on the  high  seas;  (10)  Robbery  on  shore  by  crew  of  piratical 
vessels;  (11)  Any  act  of  hostility  against  the  United  States, 
or  any  citizen  thereof,  oil  the  high  seas,  under  color  of  commis- 
sion from  a  foreign  state,  or  on  pretense  of"  such  authority; 
(12)  Piracy  by  subjects  or  citizens  of  foreign  states;  (13)  Pi- 
racy in  confining  or  detaining  negroes  on  board  vessels;  (14) 
Piracy  in  landing,  seizing,  etc.,  negroes  on  foreign  shore;  (i^) 
Arson  of  dwelling-house  within  a  fort,  etc.;  (16)  Arson  of 
vessel  of  war;     (17)     Treason. 

Through  agitation,  brought  about  by  General  Newton  M. 
Curtis,  in  the  Fifty-second  Congress,  in  1892,  the  number  of  of- 
fenses was  reduced  to  three. 

The  special  joint  committee  on  the  revision  of  the  laws  re- 
porting to  the  Fifty-ninth  Congress  just  closed  a  bill  to  revise, 
codify,  and  amend  the  penal  laws  of  the  United  States,  say  in 


i6  SELECTED  ARTICLES 

their  report:  "We  have  abolished  the  punishment  of  death  in 
all  except  three  cases — treason,  murder,  and  rape — and  have 
provided  that  even  in  these  cases  it  may  be  modifieTlo  imprison- 
ment for  life;  and  as  humane  judges  in  England  avail  them- 
selves of  the  most  technical  irregularities  in  pleadings  and  pro- 
ceedings as  an  excuse  for  discharging  prisoners  from  the  cruel 
rigors  of  the  common  law,  so  jurors  here  often  refuse  to  convict 
for  joffenses  attended  with  extenuating  circumstances  rather  than 
submit  the  offender  to  what  in  their  judgment  is  the  cruel  re- 
quirement of  a  law  demanding  a  minimum  punishment." 

5.  Finally,  the  culmination  of  modern  legislative  tendencies, 
with  reference  to  the  death  penalty,  is  seen  in  the  abolition  of 
the  death  penalty  altogether. 

Governor  Savage,  of  Nebraska,  in  1963,  urged  the  legislature 
to  "place  Nebraska  among  the  states  representing  the  highest 
types  of  civilization,  and  the  teachings  of  the  meek  and  lowly 
Nazarene"  by  abolishing  capital  punishment. 

In  the  same  year,  New  Hampshire  abolished  the  death  pen- 
alty for  murder  in  the  first  degree  unless  the* jury  affix  the  same 
to  the  verdict ;  otherwise  the  sentence  is  for  life  imprisonment. 

During  the  past  winter  the  most  conspicuous  center  of  legis- 
lative discussion  on  this  subject  has  been  the  French  parliament. 
In  its  session  of  November  5,  1906,  the  Chamber  of  Deputies 
referred  a  bill  for  the  abolition  of  the  death  penalty  to  a  com- 
mittee on  judicial  reforms.  This  committee,  by  a  small  ma- 
jority, voted  in  favor  of  the  abolition  of  the  penalty ;  but  the 
substitute  offered  for  the  guillotine — perpetual  imprisonment,  six 
years  of  it  in  solitary  confinement — has  raised  many  objections. 
At  last  accounts  no  final  action  had  been  taken.  The  argument 
for  the  abolition  of  the  death  penalty,  accompanying  the  bill 
which  was  presented  by  Monsieur  Guyot-Dessaigne,  Minister  of 
Justice,  is  a  very  effective  and  telling  presentation  of  the  case. 

That  the  death  penalty  is  not  a  living  question  in  some  of 
the  other  parliaments  of  the  world  is  because  they  have  actually 
abolished  it  and  do  not  desire  to  restore  it.  Thus  Russia  w^as 
one  of  the  first  countries  to  respond  to  the  appeal  of  Beccaria, 
abolishing  it  in  1753,  except  for  political  offenses.  It  was  abol- 
ished in  Portugal  in  1867.  in  Holland  in  1870,  in  Italy  in  188^; 


CAPITAL    PUNISHMENT  17 

in  the  majority  of  the  Swiss  cantons ;  in  Costa  Rica,  Brazil,  Ecua- 
dor, Guateinala,  and  Venezuela.  It  is  to  be  further  noticed  that 
some  countries  which  have  not  formally  abolished  it  by  legis- 
lative act  have,  in  fact,  suppressed  it  in  practice.  This  is  .true 
of  Belgium  and  also  of  the  state  of  Kansas. 

Apropos  of  the  discussion  of  the  death  penalty  the  history 
of  the  recent  treatment  of  prisoners  condemned  to  execution  in 
Kansas  is  interesting: 

In  1872  the  Kansas  legislature  provided  a  peculiar  penalty 
for  murder  in  the  first  degree.  It  provided  that  one  convicted 
of  this  crime  should  be  condemned  to  death,  but  that  he  should 
be  incarcerated  in  the  penitentiary  for  one  year  before,  his  exe- 
cution, and  then  his  execution  should  take  place  only  upon  the 
order  of  the  executive.  No  governor  has  ever  exercised  this 
discretion  by  ordering  the  executioa  of  any  prisoner^  sentenced 
under  this  law ;  hence  there  have  been  no  official  hangings  in 
this  state  since  that  time. 

The  recent  legislature,  which  adjourned  a  few  weeks  ago, 
amended  this  law  making  the  punishment  for  murder  in  the  first 
degree  imprisonment  for  life.  There  are  some  fifty  or  more 
prisioners  in  the  penitentiary  who  come  under  the  provisions  of 
this  law. —  (Editor.) 


Annals  of  the  American  Academy.  29:622-5.  May,  1907. 
Capital  Punishment  and  Lynching.    J.  E.  Cutler. 

The  attempt  has  often  been  made  to  prove  from  the  statis- 
tics of  crime,  and  of  the  legal  action  taken  against  criminals 
that,  on  the  one  hand,  capital  punishment  has  no  deterrent  pow- 
er and,  on  the  other  hand,  it  prevents  the  enforcement  of  la|W 
because  conviction  is  rare  in  cases  which  involve  the  death  pen- 
alty. It  is  obvious,  however,  to  any  one  who  has  examined 
the  available  statistics  of  crime  and  its  punishment,  that  the  va- 
lidity of  such  statistical  conclusions  is  open  to  some  question. 

The  plea  for  the  abolition  of  capital  punishment  is  most  ef- 
fective and  conclusive   when   made,    frankly  and   avowedly,   on 


f 


i 


i8  SELECTED  ARTICLES 

the  ground  of  humanity  and  of  what  may  perhaps  be  properly 
termed  abstract  justice.  The  conviction  that  capital  punishment 
ought  to  be  abolished  has  its  origin  primarily  in  humanitarian 
instincts,  and  the  most  effective  arguments  that  can  be  advanced 
in  favor  of  this  action  are  those  that  make  direct  appeal  to  the 
humanitarian  impulses  and  sympathies.  It  is  then  pointed  out 
that  human  life  is  too  sacred  a  thing  to  permit  of  its  being  de- 
stroj'ed  as  a  penalty  for  any  crime  whatever.  ,It  is  argued  that 
two  or  more  men,  organized  under  a  form  of  government,  or 
acting  under  the  authority  of  a  government,  have  no  more  right 
to  take  human  life  than  one  man  has.  It  is  murder  in  either 
case  and  brutalizing  in  both.  Furthermore,  it  is  argued  that 
capital,  punishment 'prevents  reparation  in  cases  of  subsequently 
proven  innocence.  It  is  said  also  that  capital  punishment  is  a 
relic  of  barbarism.  As  civilization  has  advanced,  punishment 
has  always  become  less  severe.  The  old  law  of  retaliation  is 
now  obsolete. 

But,  admitting  the  strength  of  this  appeal,  humanitarian  im- 
pulses and  considerations  of  abstract  justice  cannot  be  accepted 
as  the  sole  criteria  in  the  formulation  of  a  criminal  code.   ,These 
motives  and  standards  are  wisely  followed  ofity  in  conjunction 
with  the  modifying  influences  of  existing  conditions.  A  criminal 
code,  to  be  effective,  must  be  constructed  with  regard  to  tht  cif^^' 
cumstances  and  conaitions  that  prevail  within  the  teriilui'v"  (jf  ll^* 
application.    YJiere  is  nonsuch  thin^  as  a  universal  criminal  cocfeT 
one  that  is  equally  applicable  to  all  parts  of  the  world,  to  all 
peoples  and  to  all  stages  and  varieties  ot  civilization,     jjnless"* 
the  code  of  the  criminal  law  is  sufficiently  adapted  to  the  char- 
aft*'^  ?pd  yomoosition  of  a  particmar  group7t'o"t!ie^  social  aiTcl 
Vetfiical    standards    of   the    citizens   of   a    particular    country    of" 
commmuty^  li  will  prove  unentorceable  and  pccnUarh  ineffective, 

A  noteworthy  illustration  of  this  fact  is  to  be  found  in  con- 
nection with  the  history  of  the  lynching  of  negroes  in  the  United 
States.  In  the  midst  of  the  increased  criminality  that  has  been 
manifested  among  the  negroes  since  emancipation,  the  Southern 
whites  have  found  the  law  and  its  administration  utterly  un- 
suited  to  the  function  of  deaHng  with  negro  criminals — hence, 
the  frequent  adoption  of  summary  and  extra-legal  methods  of 
punishment. 


CAPITAL    PUNISHMENT  19 

It  was  assumed,  after  the  emancipation  of  the  slaves,  that  a 
judicial  system,  adapted  to  a  highly  civilized  and  cultured  race, 
would  be  equally  applicable  to  a  race  of  inferior  civilization. 
It  was  not  then  recognized  that  it  is  really  a  serious  question 
whether  two  races,  differing  as  widely  in  physical  and  mental 
characteristics,  in  their  interests  and  attainments,  as  do  the 
negroes  and  the  whites,  can  occupy  the  same  territory  and  live 
side  by  side  in  peace  and  harmc^ny,  on  terms  of  equality,  under 
a  legal  system  that  has  been  worked  out  and  established 
exclusively  by  the  more  highly  civilized  and  more  cultured  race. 
The  failure  to  recognize  this  fact,  and  the  failure  to  make  spe- 
cial provision  for  the  control  of  the  negro  population  during  the 
reconstruction  period  in  the  South,  constitute  the  fundamental 
reasons  for  the  disrepute  into  which  legal  procedure  has  fallen, 
as  regards  negroes  accused  of  offenses  against  the  whites. 

We  are  just  beginning  to  realize  that  if  the  lynching  of  ne- 
groes is  to  cease,  there  must  be  much  less  reliance  than  in  the 
past  on  abstract  principles  concerning  the  rights  of  man,  re- 
gardless of  his  training  and  his  capacity.  The  great  mass  of 
the  negroes,  the  negroes  as  a  race  and  people,  have  not  the 
same  standards  as  the  whites,  either  intellectually,  morally  or 
industrially.  Measured  by  the  white  man's  standard  of  judg- 
ment, the  frequent  atrocity  of  the  crimes  committed  by  negroes 
of  low  character,  without  apparently  any  particular  provocation, 
is  something  scarcely  to  be  understood — the  adjectives  wanton, 
bestial,  outrageous,  brutal  and  inhuman,  all  seem  wholly  inade- 
quate to  express  the  feeling  of  utter  disgust  and  abhorrence 
that  is  aroused.  It  is  this  inability  to  imderstand  the  motives, 
impulses  and  characteristics  resulting  in  heinous  crimes  by  ne- 
groes, which  affords  some  explanation  of  the  tendency  to  adopt 
heinous  methods  of  punishment  for  the  perpetrators  of  these 
crimes — such  as  burning  alive  with  attendant  tortures  and  cruel- 
ties. The  fact  is  lost  sight  of  that  the  colored  race  in  the  United 
States  is  a  child  race,  in  the  sense  that  it  is  attempting  to  ac- 
complish, by  absorption  in  the  course  of  a  generation  or  two, 
all  that  the  white  race  has  been  able  to  develop  and  establish 
only  after  centuries  of  effort.  In  the  matter  of  the  adminis- 
tration  of   justice,   in   cases  where   negroes   are   concerned,   the 


/  20   )  SELECTED  ARTICLES 

line  of  action  followed  by  the  whites  in  recent  years  has  been 
similar  to  that  of  the  unreasonable  father,  who  talks  to  his 
child  and  lays  down  rules  of  conduct  for  him,  on  the  assump- 
tion that  the  child  has  all  the  experience  and  maturity  of  judg- 
ment of  an  adult,  and  then  punishes  him  with  capricious  and 
savage  severity  when  he  disobeys  or  fails  to  attain  the  standard 
that  has  been  set  for  him. 

Under  such  circumstances  it  is  not  the  part  of  wisdom  to 
abolish  capital  punishment.  The  presence  of  racial  contrasts  in 
the  population  of  the  United  States,  particularly  that  between 
the  negroes  and  the  whites,  must  not  be  omitted  from  consid- 
eration in  the  legal  treatment  of  crime.  Experience  has  shown 
that  it  is  extremely  difficult  to  secure  an  invariable  observance 
of  due  process  of  law  in  this  country,  especially  when  heinous 
crimes  are  committed  that  cross  racial  lines.  If  there  be  no 
death  penalty  that  can  be  invoked  by  law  under  such  circum- 
stances, it  is  commonly  assumed  that  there  is  ample  justifica- 
tion for  action  outside  the  law. 

One  mstance_may   be  cited   where   apparently   there   was   a 
direct  connection  between   the   abolition   of   capital  punishment  _ 
and  recourse  to  lynchings.     The  legislature  of  Colorado,  in  the 
year  1897.  adopted  a  measure  that  abolished  capital  punishment  ^ 
in  that  state  and  provided  that  every  person  convicted  of  mur- 

~3er  in  the^iirst  degree  should   suffer  imprisonment   for  life. at 

hard  labor  in  the  penitentiary.  '  In  the  year  1900  there  were 
three  lynchings  in  the  state,  all  the  victims  of  which  were  charged 
with  murder.  Two  Of  the  victims  were  negroes.  One  of  these 
negroes,  who  was  lynched  on  November  16,  1900,  was  charged 
with  the  assult  and  murder  of  a  twelve-year-old  girl.  He  was 
lynched  publicly  by  burning  at  the  stake  in  the  presence  of  some 
three  hundred  citizens,  and  it  was  stated  that  he  was  brought 
to  the  scene  of  the  lynching  by  the  sheriff  who  had  him  in  cus- 
tody. The  newspapers  of  Colorado  thereupon  unitedly  made 
demand  that  the  next  legislature  pass  a  bill  legalizing  capital 
punishment.  The  spirit  of  the  demand  is  expressed  in  the  fol- 
lowing: "If  that  bill  had  never  been  repealed,  there  is  a  gen- 
eral public  opinion  that  the  causes  for  the  various  lynchings 
that  have  taken  place  in  this  state  would  not  have  existed." 


CAPITAL    PUNISHMENT 


At  the  next  session  of  the  legislature  the  act  of  1897  was 
repealed,  and  it  was  provided  that  when  a  person  was  found  to 
be  guilty  of  murder  in  the  first  degree,  the  jury,  in  its  verdict, 
should  fix  the  penalty  to  be  suffered,  either  at  imprisonment  for 
life  at  hard  labor  in  the  penitentiary  or  at  death  by  hanging. 
Since  1901,  therefore,  it  has  been  the  law  in  Colorado  that  the 
perpetrator  of  a  heinous  crime  shall,  upon  conviction,  receive,  in 
the  discretion  of  the  jury,  either  the  sentence  of  death  or  of  life 
imprisonment.  A  possible  excuse  for  lynching,  on  the  ground 
that  the  guilty  person  cannot  be  adequately  punished  under  the 
law,  has  thus  been  removed,  and  at  the  same  time  one  frequent 
objection  to  the  legal  infliction  of  the  death  penalty  has  been  an- 
swered by  a  provision  that  no  account  of  the  details  of  the  ex- 
ecution shall  in  any  manner  be  published  in  the  state. 

It  is  not  possible  in  very  many  cases  to  show  that  the  appeal 
of  the  death  penalty  has  thus  directly  promoted  lynching.  In 
general,  however,  the  history  of  lynching  in  this  cotpftry  fur- 
nishes evidence,  which  may  be  accepted  as  fairly  conclusive,  that 
for  certain  crimes,  no  legal  punishment  other  than  ignominious 
death  to  the  perpetrator,  can  satisfy  the  popular  sense  of  justice 
or  receive  the  effective  support  of  public  opinion.  So  deeply  rooted 
in  our  American  life  and  spirit  has  this  practice  of  lynching  be- 
come, that  only  a  very  slight  excuse,  a  mere  shadow  of  a  justifica- 
tion, is  necessary  to  induce  private  citizens  to  take  the  law  into 
their  own  hands  under  any  circumstances  which  appear  to  be 
especially  exasperating  In  the  mind  of  the  average  citizen  what 
is  conceived  to  be  the  enormity  of  the  crime  committed  and  the 
depravity  of  the  accused  completely  overshadow  all  other  con- 
siderations. To  a  considerable  degree  lynchings  represent  an 
attempt  on  the  part  of  private  citizens  to  inflict  a  penalty  that 
in  severity  will  be  proportionate  to  the  heinousness  of  the  crime 
committed. 

In  following  the  lead  of  the  humanitarians,  therefore,  an 
accepting  the  principle  that  has  been  laid  down  by  the  penologist 
that  the  penalty  must  be  fitted  to^the  criminal  rather  than 
crime,  it  must  not  be  forgotten  that  the  foundation  of  the  law  of 
retaliation  is  laid  deep  in  human  nature  and  primitive  tradition. 
It  is  not  too  much  to  say  that  to  abolish  capital  punishment  in 


22  SELECTED  ARTICLES 

this    eountry    is    likely    to    provoke    lynchings.    Whenever    un- 
usually brutal  and  atrocious  crimes  are  committed,  particularly  if 
TtTey  cross  racial  lines,  nothing  less  thalTlKe"  "iSHth^penalty  Will — ^ 
satisfy  the  general  sense  of  justice  that  is  to  be  found  in  tKe  aver- 
ap  American  gQ^^nttV    \ 

Annals  of  American  Academy.  29: -625-9.  May,  1907. 

Homicide  and  the  Death  Penalty"  in  ^Mexico. 
Maynard  Shipley. 

In  Mexico,  as  in  the  United  States,  each  state  reserves  the 
right  to  enact  its  own  penal  laws,  and-  in  accordance  with  this 
constitutional  prerogative,  the  states  of  Campeche,  Yucatan  and 
Puebla  long  ago  abolished  the  death  penalty,  a  movement  fol- 
lowed more  recently  by  the  legislators  of  Nuevo-Leon.  It  is  the 
general  opinion  of  jurists  and  criminologists  in  Mexico  that  the 
death  penalty  is  justifiable  only  under  martial  law,  or  when  suit- 
able places   of   detention   for  criminals   are   not  available. 

Comparison  of  the  judicial  statistics  of  the  states,  wherein 
the  death  penalty  is  abolished  with  others  in  which  capital  pun- 
ishment is  still  prescribed,  shows  that  human  life  is  fully  as 
safe  in  the  former  as  in  the  latter  states.  In  the  state  of  Cam- 
peche (with  a  population  of  about  90,000)  there  were  but  seventy- 
one  persons  convicted  of  homicide  during  the  fifteen  years  1871- 
85.  In  Yucatan  (with  a  population  of  about  393.000)  the  number 
of  convictions  for  homicide  during  the  same  period  was  336.  On 
the  basis  of  the  population  of  1882,  the  annual  average  of  con- 
victions for  murder  and  manslaughter  in  both  Yucatan  and  Cam- 
peche was  but  5.5  per  one  hundred  thousand  of  inhabitants.  For 
purposes  of  comparison,  it  may  be  stated  in  this  connection  that 
the  annual  average  of  convictions  for  homicide  in  the  Province 
and  City  of  Buenos  Ayres  (where  the  death  penalty  has  always 
been  enforced),  is  11.5  per  one  hundred  thousand  of  population; 
in  Paraguay,  the  annual  average  is  6.1 ;  in  Uruguay,  25.5;  in  Italy, 
y.6 ;  in  Spain,  5.9  per  one  hundred  thousand  of  population. 

The  table  below  shows  the  number  of  convictions  for  murder ' 
and  manslaughter  in  the  states  of  Yucatan  and  Campeche  during 
the  fifteen  years  1871-85,  given  in  quinquennial  periods,  with  the 
annual  averages   (based  on  statistical  data  derived  from  an  offi- 


UNIVERSITY 

OF 


CAPITAL    PUNISHMENT 


23 


cial  document  coiTipiled  by  Dr.  Antonio  Penafiel,  and  published 
by  the  Mexican  government  in  1890)  : 


Yucatan 

Campeche 

Annual  average  in  quinquen- 
nial periods .' 


1871-75. 

1876-80. 

1881-85. 

97 

129 

110 

21 

21 

29 

19.4 

23.8 

22.0 

4.2 

42 

5.8 

Annual 
average 


22.6 
4.1 


The  figures  above  show  that  the  advance  of  civilization  in 
Mexico  has  been  attended  with  a  slight  increase  in  the  number  of 
convictions  for  homicide  in  these  two  states ;  this  does  not,  how- 
ever, imply  a  greater  number  of  homicides  committed,  but  rather 
greater  certainty  in  the  detection  and  conviction  of  and  for  crime. 

Statistics  of  convictions  for  homicide  in  Puebla  cover  only 
the  four  years  1881,  1882,  1883  and  1885,  but  Senor  Emilo  Al- 
varez, Procurador-General  of  the  Federal  District,  and  author  of 
the  latest  statistical  work  on  Mexican  criminality,  assures  the 
present  writer  that  there  is  nothing  to  indicate  that  human  life  is 
less  Secure  in  Puebla  than  in  the  states  wherein  the  death  penalty 
has  not  been  abolished,  'Tor  it  is  easy  to  see,"  says  he,  "that  se- 
curity depends  on  many  causes  foreign  to  the  application  of  the 
death  penalty." 

The  table  below  gives  the  number  of  convictions  for  cer- 
tain crimes  committed  in  the  state  of  Puebla  during  the  four 
years  named : 

Offenses 


1 
1 

s 

C8 

CO 

-s 

■5 

■Sv 

Years 

u 

1 

c 

C3 

C  9 

Ml 

"is 

11 

.£5  _ 

S 

s 

£ 

M 

B 

Pi 

K  = 

1881 

3 

207 

3 

45 

1,113 

971 

87 

1882 

1 

2.S4 

10 

16 

1.337 

725 

80 

1883 

1 

250 

9 

9 

1.153 

629 

94 

1885 

2 

7 

208 

1 

7 

7 

957 

600 

60 

fc,  Totals 

919 

1 

29 

77 

4.560 

2.928 

321 

24  SELECTED  ARTICLES 

Although  capital  punishment  was  practically  abolished  in  Nue- 
vo-Leon  many  years  ago,  it  was  not  legally  prohibited  until  1905. 
There  have  been  but  three  executions  in  that  state  since  1885, 
though  the  number  of  culprits  condemned  to  be  shot  (tlie  Mex- 
ican method  of  inflicting  capital  punishment)  during  the  seven- 
teen years  ending  in  1905  was  thirty-one.  On  the  basis  of  the 
population  of  1900  (326,940)  there  were,  during  the  same  period, 
in  the  state  of  Nuevo-Leon,  0.61  death  sentences  annually  in  each 
one  hundred  thousand  of  population.  The  crimes  punishable  by 
death  during  this  period  were  treason,  premeditated  murder,  in- 
cendiarism, highway  robbery,  piracy,  parricide,  and  "holding  up" 
a  pedestrian  in  the  streets  or  roads. 

Mexico  has  the  same  number  of  states  in  which  the  death 
penalty  has  been  legally  abolished  as  have  the  United  States,  and 
also  one  state  which  offers  an  exact  parallel  to  the  state  of  Kansas, 
where  death  sentences  are  regularly  pronounced  which  everybody 
knows  are  never  to  be  executed.  During  the  eighteen  years  of 
Governor  Villada's  administration,  in  the  state  of  Mexico,  only 
two  capital  sentences  were  carried  into  effect.  The  official  statis- 
tics show  that  no  evil  results  followed  this  policy  of  executive 
clemency.  During  the  five  years,  1897-1901,  Governor  Villada 
had  occasion  to  grant  (on  an  average)  but  six  commutations 
yearly,  in  a  population  of  about  900,000,  or  0.7  per  one  hundred 
thousand  of  population.  It  will  be  remembered  that  the  annual 
average  of  death  sentences  in  Nuevo-Leon  was  1.8,  or  0.61  per 
one  hundred  thousand  of  inhabitants  (on  the  basis  of  the  popula- 
tion in  1900,  which  was  326,940). 

In  the  state  of  Vera  Cruz,  also,  the  death  penalty  is  so  seldom 
applied  as  to  be  practically  inoperative.  "In  almost  every  state 
in  the  republic,"  writes  a  native  authority,  "legal  executions  are 
authorized,  but,  except  in  the  case  of  soldiers,  there  is  every 
chance  that  the  sentence  pronounced  may  be  changed  before  the 
date  of  execution,  to  imprisonment  for  twenty  years.  This  is  the 
limit  of  imprisonment  that  may  be  pronounced  for  any  crime.  It 
it  supposed  that  a  man  will  either  be  dead  at  the  end  of  that 
time  or  so  harmless  that  he  may  be  permitted  again  to  enter  so- 
ciety." 


CAPITAL    PUNISHMENT  25 

Passing  now  to  the  federal  district,  we  find  that  here,  too, 
capital  punishment  is  practically  abolished  for  all  but  grave 
crimes  of  the  military  order.  Though  homicide  is  of  deplorable 
frequency  among  the  lower  classes  of  the  capital  (70.72  per  one 
hundred  thousand  of  population  in  1899),  no. ordinary  criminals 
have  been  executed  in  the  federal  district  for  about  fourteen 
years.     To  quote  an  anonymous  writer  in  a  Mexican  journal: 

"In  the  courtyard  of  Belem  the  wall  against  which  the  con- 
demned men  were  stood  is  scarred  with  bullet  marks,  but  prison- 
ers have  ceased  to  regard  it  with  the  terror  they  once  might  have 
felt,  and  prison  officials  have  fallen  into  the  habit  of  regarding  it 
more  or  less  as  a  curiosity  rather  than  as  a  part  of  the  working 
machinery  of  the  institute.  Possibly  no  man  condemned  to  death 
can  rest  with  assurance  that  by  exercise  of  official  clemency  he 
will  escape  death,  but  it  is  doubtful  if  there  is  an  attorney  in 
the  country  who  would  not  feel  almost  confident  that  in  the  end 
he  would  obtain  for  his  client  a  commutation  of  the  sentence  to 
twenty  years  imprisonment." 

President  Diaz  expresses  himself  as  being  quite  willing  to  sub- 
stitute imprisonment  for  the  death  penalty  .if  the  experiment  now 
in  progress  proves  successful.  That  the  death  penalty  was  re- 
garded by  the  Mexican  jurists  as  a  merely  temporary  makeshift, 
useful  in  the  absence  of  a  properly  equipped  penitentiary,  is  im- 
plied in  the  paragraph  on  this  subject  in  the  federal  constitu- 
tion, which  read  as  follows  (Art.  23)  : — 

"Pending  the  abolition  of  capital  punishment,  it  remains  in  the 
charge  of  the  administrative  power  to  establish,  as  soon  as  pos- 
sible, the  penitentiary  regime.  In  the  meanwhile  it  is  abolished 
for  political  crimes,  and  cannot  be  extended  to  any  other  cases 
than  to  the  traitor  of  the  country  in  a  foreign  war,  to  a  highway- 
man, to  an  incendiary,  to  a  parricide,  to  a  homicide  when  accom- 
panied by  treachery,  or  premeditated  vengeance,  to  grave  crimes 
of  the  military  order  and  to  those  of  piracy,  which  the  law  will 
define." 

That  death  sentences  are  not  usually  carried  out  in  the  federal 
district  may  be  seen  from  the  fact  that  of  246  applications  for 
executive  clemency  during  the  twenty-one  years,  1881-1902,  only 
twenty-one  were  refused. 


26  SELECTED  ARTICLES 

The  fact  that  capital  executions  are  becoming  more  and  more 
rare  in  the  federal  district  woiilr^  seem  to  indicate  that  the  aboli- 
tion of  the  death  penalty  in  Mexico  has  been  attended  by  no  evil 
results,  a  conclusion  justified  by  the  facts.  Notwithstanding  the 
increase  of  population  during  the  last  twenty  years,  the  number  of 
convictions  on  capital  charges  in  the  federal  district  during  the 
decade  1881-90,  was  no,  while  there  were  but  122  during  the 
decade  1891-1900.  In  1899.  with  a  population  of  500,000,  there 
were  sixteen  capital   sentences  pronounced. 

In  regard  to  the  history  of  homicide  in  Mexico  as  a  whole,  no 
statistics  have  been  published  since  the  year  1890.  The  report 
then  published  shows  that  murder  had  been  constantly  on  the  de- 
crease for  the  fifteen  years  ending  with  1885,  despite  the  fact 
that  the  proportion  of  capital  executions  to  homicides  com- 
mitted was  growing  smaller  and  smaller  year  by  year. 

When  it  is  considered  that  the  court  records  are  avowedly  in- 
complete for  the  years  preceding  1879,  it  is  apparent  that  hom- 
icides in  Mexico  are  decreasing  both  in  actual  numbers  and  in 
proportion  to  the  population.  Previous  to  the  advent  of  the  rail- 
roads and  telegraph  many  crimes  of  violence  escaped  the  notice 
of  the  authorities,  and  the  apprehension  even  of  known  murderers 
was  an  exceedingly  difficult  task.  During  the  last  seven  years  of  the 
period  covered  by  the  above  statistics  the  police  force  of  the  re- 
public was  being  constantly  augmented,  and  the  service  and  dis- 
cipline improved,  while  the  population  increased  by  about  two  and 
one-half  millions;  yet  the  annual  number  of  capital  sentences 
pronounced  diminished  year  by  year,  the  records  showing  216  for 
the  eight  years  1871-78,  and  211  for  the  eight  years  1879-86. 
Homicides,  as  the  results  of  quarrels  and  drunken  brawls,  among 
the  lower  classes,  are  still  deplorably  frequent  in  Mexico;  but 
premeditated  murder,  perpetrated  with  a  view  to  robbery,  or 
murder  accompanied  by  treachery,  and  highway  robbery  are  be- 
coming of  relatively  rare  occurrence.  Only  a  few  years  since 
no  one  could  safely  walk  the  streets  of  the  capital  after  nightfall. 
"One  may  now  traverse  this  city  from  end  to  end  at  any  time, 
night  or  day,  without  any  fear  of  being  molested,"  writes  Mr. 
John  Hubert  Cornyn.     Meanwhile,  capital  punishment  has  been 


CAPITAL    PUNISHMENT 


27 


practically  abandoned  throughout  the  republic.  A  native  writer 
declares :  "Unless  there  occufs  some  check  to  the  growth  of 
the  feeling  of  revulsion  against  capital  punishment,  the  next  gen- 
eration in  Mexico  is  likely  to  glean  all  its  information  regarding 
that  interpretation  of  justice  that  demands  'a.  life  for  a  life'  from 
history  or  from  reports  of  legal  executions  in  other  countries." 

The  table  following  shows  the  annual  number  of  convictions 
for  various  forms  of  homicide  in  the  republic  during  the  fifteen 
years  1871-85,  with  the  annual  number  of  death  sentences  pro- 
nounced.i 

Offenses 


Years 

Murder 

Man- 
slaughter 

Parricide 

Infanticide 

Death 
sentences 

lg71  

375 
404 
408 
448 
401 

987 

927 

969. 

1.24flf 

1.062 

7 
4 
5 

I 

87 
53 
39 
58 
50 

41 

1872 

23 

1873 

30 

1874 

23 

1875 

18 

Total 

2,036 

5.185 

28 

287 

135 

1876-       

461 
440 
642 
594 
486 

].099 
1,106 
],252 
1,321 
1,182 

5 
9 
10 

15 
15 

42 
41 
61 
98 
71 

26 

1877 

12 

1878 

43 

1879 

29 

1880 

28 

Totals 

2,623 

5,960 

54 

313 

138 

1881 

615 
533 
627 
528 
532 

1,447 
1,322 
1,349 
1.322 
1,315 

14 
13 
18 
10 

18 

96 
85 
83 
61 
62 

30 

1882 

20 

1883 

36 

1884 

1885  

24 

18 

Totals 

2,835 

6.755 

73 

387 

128 

Totals  in 

Quinquennial  Periods 

1871-75 

2,036 
2,623 
2,835 

5.185 
5,960 
6,755 

28 
54 
73 

287 
313 

387 

135 

1876-80        .        ... 

138 

1881-85 

128 

Grand  Totals 

7.494 

17,900 

155 

987 

401 

1  statistics  for  Puebla  are  not  included  in  the  above  table, 
fignres  for  this  state   not  being  available. 

-  During-  the  civil  war  of  1876  and  1877  many  of  the  archives 
were  destroyed.  Since  1878  the  archives  have  been  in  perfect 
order. 


2S  SELECTED  ARTICLES 

Arena.  2:  513-23.  October,  1890. 

Death  Penalty.     George  Shrady. 

The  execution  by  electricity  which  has  recently  taken  place  has 
brought  to  the  surface  a  general  discussion  of  a  subject  of  the 
greatest  concern  to  society  at  large.  Upon  the  electric  chair  at 
Auburn  was  focussed  the  high  light  of  a  world-wide  interest.  It 
was  promised  that  the  new  method  of  getting  rid  of  a  murderer 
should  be  an  improvement  upon  all  others.  History  must  now 
record  its  failure  from  many  points  of  view.  When  the  harrow- 
ing details  of  the  death  chamber  were  tingled  along  the  telegraph 
wires  of  tht  country,  and  their  impluses  were  throbbed  through 
the  cable,  the  entire  civilized  world  viewed  the  scene  with  aston- 
ished horror.  The  criminal  became  a  martyr  and  the  manner  of 
his  execution  was  anathematized  by  the  daily  press  as  a  disgrace 
to  civilization.  He  came  to  it  submissively,  trusting  to  an  easy 
death,  but  was  killed  like  a  writhing  dog.  He  kept  his  promise  to 
do  as  well  as  he  could,  and  the  only  mercy  was  that  he  was 
rendered  unconscious  frorti  the  first.  Viewed  even  as  a  scientific 
operation,  however,  it  transcended  in  apparent  brutality  anything 
that  can  be  imagined.  And  yet  this  was  claimed  to  be  the  true 
and  improved  way  of  doing  it.  This,  too,  after  all  the  discussion 
by  expert  electricians,  after  all  the  experiments  upon  the  lower 
animals,  after  the  careful  examination  of  the  power  of  different 
machines,  the  accurate  measurement  of  volts,  the  elaborate  estima- 
tion of  resistance  to  currents,  and  the  exhaustive  study  of  the 
generating  power  of  different  dynamos.  It  was  the  first  dreadful 
trial  on  a  human  being  to  measure  the  terrible  force  of  quickly 
repeated  lightning  strokes  against  his  vital  tenacity.  Seemingly 
every  precaution  had  been  taken  to  make  the  result  a  certainty, 
when  exactly  the  opposite  was  proved. 

As  now  shown  there  was  no  accurate  and  reliable  way  of  de- 
termining positively  when  real  death  occurred.  None  of  the  ex- 
perts dared  examine  the  victim  while  the  deadly  current  was 
coursing  through  its  circuit.  No  one  could  go  near  to  feel  the 
pulse,  or  to  listen  to  the  heart  beat.  All  the  chances  were  taken 
upon  the  actual  number  of  seconds  required  to  make  Hfe  extinct. 


CAPITAL    PUNISHMENT  29 

That  there  was  an  error  of  judgment  in  that  regard  was  shown  in 
in  the  respiratory  struggles  of  the  criminal  after  the  first  shock 
was  administered.  Although  there  was  no  more  pain  or  agony 
during  these  efforts  than  if  the  man  had  been  under  the  influences 
of  an  anaesthetic  and  had  been  undergoing  a  severe  surgical 
operation,  there  was  scarcely  less  doubt,  under  such  conditions, 
that  he  might  not  have  rallied  if  the  shock  had  not  been  re- 
peated. Viewed  from  such  standpoints  it  can  hardly  be  claimed 
that  the  first  use  of  electricity  as  a  means  of  producing  death 
easily,  quickly,  and  as  some  have  claimed  "pleasantly,"  was,  by 
any  means,  a  success.  All  this  was  done  for  the  sake  of  making 
an  improvement  upon  the  other  forms  of  execution.  When, 
however,  we  compare  electricide  with  these,  we  are  forced  to  ad- 
mit that  it  utterly  failed  to  meet  the  extravagant  claims  of  its 
advocates./- The  scene  in  the  death  chamber  .was  well  calculated 
to  impress  any  impartial  observer  with  this  fact.  For  the  poor 
victim's  sake  we  are  glad  to  believe  that  he  suffered  no  pain,  but 
at  the  first  stroke  he  was  simply  shocked,  not  killed,  then  after  a 
torturingly  long  interval  the  shock  was  repeated  and  continued, 
until  the  burning  flesh  of  his  back  demonstrated  that  the  sacrifice 
had  been  complete.  From  the  administration  of  the  first  stroke 
until  the  second  circuit  was  finally  interrupted,  five  minutes  and 
twenty-eight  seconds  elapsed.  In  view  of  these  facts  it  can  hard- 
ly be  said  that  the  execution  was  a  speedy  one,  certainly  not  as 
quick  as  lightning.  That  the  murderer  suffered  nothing  is  no 
argument  in  favor  of  the  apparent  brutality  of  failing  to  kill  him 
at  the  first  blow,  then  striking  him  again  and  accidentally  roast- 
ing him  afterwards.  The  start  was  well  enough,  perhaps,  but 
who  can  contemplate  the  finish  without  a  shudder.^.  The  only 
comfort  those  can  take  who  have  advocated  the  new  plan,  is  that 
the  first  current  was  a  stunning  one.  But  in  the  other  methods 
of  inflicting  the  death  penalty  is  there  more  suffering? 

Excepting  perhaps  the  Russian  plan  of  execution  by  the 
knout — beating  the  life  out  of  the  victum  with  a  loaded  lash — 
the  dreadful  element  of  pain  to  the  individual  is  hardly  worthy  of 
consideration.  The  guillotine  is  certainly  very  rapid  in  its  action, 
and,  as  far  as  can  be  judged  by  analogy  with  similar  phenomena 


30  SELECTED  ARTICLES 

all  sensation  is  abolished  on  the  instant  of  the  stroke.  The  com- 
munication with  the  pain  centers  is  at  once  cut  off,  and  the  sensa- 
tion current  is  instantly  interrupted.  The  only  revolting  part  of 
the  proceeding  is  the  necessary  shedding  of  blood ;  but  this,  scrip- 
turally  speaking,  should  render  the  killing  contract  more  valid. 
As  to  rapidity  and  effectiveness  the  same  thing  is  done  with  the 
heavy  Japanese  sword,  and  with  scarcely  less  precision.  The 
Spanish  garrotte  crushes  the  cervical  spine  and  upper  spinal  cord 
by  means  of  a  screw  quickly  working  through'  the  back  of  an  iron 
collar.  Death  here  is  practically  instantaneous.  The  same  may 
be  said  also  of  hanging.  The  instant  the  noose  tightens  its 
choking  grip,  consciousness  is  gone.  The  contorting  spasms  of 
the  larger  muscles  are  merely  involuntary  movements  that  have 
no  connection  with  appreciable  pain.  At  least,  this  is  the  testi- 
mony of  men  who  have  been  cut  down  while  insensible  from  at- 
tempted suicide  by  such  means,  or  who  have  been  similarly  res- 
cued from  accidental  hanging.  When  there  has  been  a  bungHng, 
the  rope  should  not  be  blamed.  Even  the  electric  chair  may  not 
have  had  its  chance. 

The  objection  to  hanging  on  the  grounds  of  simple  humanity 
has  been  that  some  moments  must  elapse  before  actual  death  can 
be  a  certainty.  When  the  neck  is  not  broken  (and  this  is  the  rule), 
the  heart  continues  to  beat  in  a  more  or  less  irregular  manner  for 
several  minutes  after  the  suspension.  But  if  the  hanging  is  prop- 
erly done,  death  is  always  sure  and  there  are  never  any  attempts, 
reflex  or  otherwise,  at  respiration.  The  victim,  free  from  pain 
and  absolutely  unconscious  after  the  first  convulsive  throes, 
swings  motionless  in  mid  air,  a  limpid  nothing  of  humanity. 
Unconsciousness  and  consequent  loss  of  sensation  are  in  such 
instances  evidently  due  to  the  combined  effects  of  the  shock  of  the 
fall  and  of  the  congestive  brain  pressure  caused  by  the  grip  of 
the  noose. 

Of  the  five  forms  of  execution  now  in  vogue,  that  adopted 
by  military  tribunals  is  often  open  to  the  most  objections.  The 
bullet  oftentimes  misses  its  aim  and  a  vital  part  is  not  always 
struck.  There  is  a  sentiment  associated  with  dying  a  soldier's 
death  that  cancels  in  a  measure  its  otherwise  revolting  aspect. 


CAPITAL    PUNISHMENT  31 

It  is  well-known  that  no  individual  of  the  firing  squad  is  aware 
that  his  particular  rifle  is  loaded  with  ball  and  he  naturally  hopes 
it  is  not.  There  is  never  a  heart  in  the  work  of  shooting  a  com- 
rade. The  aim  is  almost  purposely  wide  of  its  mark  and  con- 
sequently with  a  risk  to  the  condemned  man,  of  pain  and  suffer- 
ing when  death  is  not  speedy.  In  times  of  war,  when  military 
executions  are  most  frequent,  the  life  of  an  ordinary  soldier  is 
of  such  small  value  that  little  if  any  attention  is  given  to  technioal 
details,  and  still  less  is  any  criticism  invited  as  to  the  mere  human- 
ity of  the  proceeding. 

In  studying  the  technique  of  executions  it  is  interesting  to  note 
a  desire  on  the  part  of  those  who  believe  in  these  forms  of  pun- 
ishment, to  inflict  as  Httle  suffering  as  possible  upon  the  con- 
demned one.  This  is  as  it  should  be  and  is  so  far  a  credit  to  our 
present  civilization.  Those  who  hold  a  contrary  view  are  happily 
in  the  very  small  minority.  There  is  only  pity  fo.r  such  a  claim 
that  the  more  severe,  revolting,  and  cruel  we  make  an  execution, 
the  better  will  it  serve  its  purpose.  It  is  to  be  regretted,  in  this 
age  of  enlightenment,  liberality,  and  progress,  that  even  clergy- 
men should  be  found  among  the  staunch  advocates  of  this  obnox- 
ious doctrine.  By  their  training  and  mission  it  would  be  quite 
reasonable  to  expect  from  them  something  in  advance  of  the 
religion  of  the  fire  and  sword.  Thinking  men  now  ask  a  better 
argument  for  revenge  than  the  quotation  of  a  text  or  the  literal 
interpretation  of  a  scriptural  injunction.  Strange  to  say  in  a 
newspaper  column  of  personal  interviews  representing  the  opin- 
ions of  scores  of  leading  preachers  there  was  scarcely  a  man 
among  them  who  was  not  in  favor  of  some  form  of  capital  pun- 
ishment, and  not  one  who  was  not  willing  to  advise  it  as  a  last 
and  effectual  remedy  for  murder.  Such  conclusions  are,  to  say 
the  least,  sorry  comments  upon  a  gospel  which  for  nearly  nine- 
teen centuries  has  lent  its  best  efforts  toward  Christianizing  hu- 
manity. V  "But,"  say  the  advocates  of  this  doctrine,  "executions 
are  highly  beneficial  in  that  the  very  horror  which  attends  them 
acts  as  a  direct  preventive  of  similar  crimes  in  others.  Capital 
punishment  has  a  direct  deterrent  effect  upon  murder.  This  is 
its  chief,  if  not  only  aim."     Let  us  candidly  enquire  if  this  is 


^ 


32  SELECTED  ARTICLES 

really  so.    How  much  of  truth  and  fact  is  on  their  side? 

Viewing  this  question  of  the  death  penalty  in  its  broadest 
sense,  we  are  led  to  look  at  it  from  many  aspects.  What  effect, 
for  instance,  has  it  upon  a  murder  already  committed?  It  cer- 
tainly does  not  cure  the  crime.  That  is  past  cure.  The  deed  is 
done  and  the  victim  is  beyond  help.  We  cannot  remedy  one 
murder  by  committing  another.  Whether  this  is  under  the 
sanction  of  law  or  not  does  not  alter  the  principle  upon  which 
this  so-called  justice  is  founded.  Retribution*  in  this  sense  is  but 
another  name  for  revenge.  When  we  stigmatize  it  thus,  we  ap- 
proach the  real  point  at  issue.  Society  has  no  more  moral  right 
to  take  this  punishment  upon  itself  than  has  an  individual  who  is 
the  nearest  of  kin  to  the  victim.  The  law  holds  the  matter  in  its 
own  hands  on  the  plea  that  the  murderer  shall  have  a  fair  trial. 
So  far  there  is  a  show  of  justice  in  the  proceeding;  but  if  found 
to  be  guilty,  the  result  to  the  culprit  is  the  same.  Society  then 
simply  revenges  the  death,  instead  of  allowing  any  single  in- 
dividual to  do  so.  So  far  as  the  criminal  is  concerned,  we  have 
done   nothing   more    than   kill   him.  (It   has   been    an    eye    for 

^»eye,  a  tooth  for  a  tooth,  a  life  for  a  life.  The  account  in  this 
respect  is  squared  up, — ^blood  for  blood.  The  crime  of  murder 
is  expiated — technically  and  judicially  speaking,  remedied,    \ 

' — /  To  such  as  believe  in  the  deterrent  effect  of  execution  it  may 
he  well  to  consider  the  uncertainty  of  convictions  for  murder.  It 
is  fair  to  presume  that  the  reasonable  hope  of  escaping  the 
gallows  offsets  in  no  small  degree  the  fear  of  it.  No  sooner  is 
the  crime  committed  than  the  legal  adviser  is  consulted,  and, 
in  the  majority  of  cases,  fulfils  his  promise  to  obtain  a  verdict  of 


acquittaD(^  Conviction  thus  becomes  the  exception  rather  than 
the  rule.  The  criminal  classes  know  this  and  act  accordingly. 
An  experienced  criminal  lawyer  of  New  York  is  quoted  as  saying 
that  of  nearly  six  hundred  cases  of  murder  of  which  he  was  the 
counsel,  scarcely  a  score  were  punished.  The  lesson  which  this 
teaches  cannot  be  misinterpreted ;  the  criminal  who  is  actually 
sentenced  and  executed,  is  looked  upon  more  as  an  unfortunate 
victim  of  the  law  than  one  who  justly  deserved  his  punishment. 
He  has  a  funeral  largely  attended  by  sympathizing  friends  who 


CAPITAL    PUNISHMENT  33 

never  tire  in  praising  his  noble,  plucky,  but  untimely  death.  He 
is  the  hero  of  the  hour,  with  virtues  that  invite  emulation, 
rather  than  the  criminal  whose  disgraceful  end  should  be  a  last- 
ing example  to  all  evil  doers.  Of  course  it  is  hardly  to  be  ex-  , 
pected  that  the  murderer  should  confess  his  guilt.  He  thus 
leaves  nothing  behind  him  for  good.  He  simply  goes  to  glory 
an  innocent  man  and  the  hanging  lesson  thus  endeth.  A  lie  is, 
to  all  intents  and  purposes,  not  a  lie  when  uttered  under  the  gal- 
lows. A  murderer  facing  death  is  the  last  person  in  the  world 
from  whom  a  good  moral  precept  can  be  extracted.  As  an  ex- 
ample he  is  by  no  means  a  success,  and  consequently  has  no 
very  striking  deterrent  effect  upon  the  community.  What  could 
be  expected  from  hanging  what  the  victim  says  is  an  innocent 
man?  We  get  him  out  of  the  way  in  a  very  radical  manner,  to 
be  sure,  but  do  we  do  so  as  a  warning  to  others  of  his  ilk?  Do 
they  profit  by  it?  Take  up  the  morning  papers  and  read  of  mur- 
der everyw^here.  In  the  next  column  to  the  report  of  the  execu- 
tion is  that  of  an  assassination  in  broad  daylight  and  in  a  public 
thoroughfare.  The  execution  was  horrible,  so  was  the  new 
murder.  They  occur  entirely  independent  of  each  other,  it  is  true, 
but  the  coincidence  is  quite  striking  enough  to  shake  our  faith  in 
the  deterrent  theory.  Even  to  ordinary  observation  it  is  quite 
evident  that  murders  are  not  on  the  decrease ;  on  the  contrary,  if 
we  interest  ourselves  enough  to  count  them  as  they  are  reported 
almost  daily,  we  are  inclined  to  take  the  opposite  view.  If, 
however,  we  attempt  to  solve  the  reasons  for  the  commission  of 
crime  as  we  would  any  other  problem  and  look  -for  an  ex- 
planation of  apparent  inconsistencies,  some  very  interesting  and 
instructive  explanations  offer  themselves.  And,  strangely  enough, 
all  these  facts  are  directly  opposed  to  the  ordinarily  accepted  doc- 
trine of  prevention ;  in  truth  the  fear  of  death  by  execution  is  so 
far  in  the  background  as  hardly  to  be  worthy  of  consideration. 
To  properly  appreciate  their  significance  we  must  study  the  philos- 
ophy of  crime  not  only  as  regards  the  individual  criminal,  but 
also  in  his  relation  to  society. 

Let  us  get  at  this  part  of  the  question  as  directly  as  possible 
by  asking,  what  is  murder?     In  the  vast  majority  of  cases  it  is 


i^ 


34  SELECTED  ARTICLES 

an  accident  of  passion  in  an  individual  who  has  lost  his  self- 
control.  He  is  in  ninety-nine  cases  out  of  a  hundred  a  weak 
vessel,  a  crooked  pot  that  has  been  jarred  out  of  his  equilibrium. 
He  tumbles  over  and  we  smash  him  in  pieces  accordingly.  He 
was  born  crooked ;  we  are  hardly  prepared  to  discover  that  the 
criminal  is  born  not  made.  But  this  can  be  proved  to  be  true, 
nevertheless.  There  is  as  much  heredity  in  crime  as  in  con- 
sumption, cancer,  or  insanity.  The  statistics  of  prisons  show 
that  crime  in  one  shape  or  another  can  trickle  through  families 
even  to  the  sixth  generation.  With  insanity  this  is  notoriously 
so.  The  records  of  our  insane  asylums  are  filled  with  such  his- 
tories. Occasionally  the  criminal  proclivities,  eccentricities,  and 
other  mental  defects  of  ancestry  are  the  subjects  of  legal  in- 
quiry before  the  courts,  but  as  this  is  done  more  to  prove  heredi- 
tary insanity  than  to  excuse  crime,  sociologists  have  been 
compelled  to  look  to  other  sources  for  their  data.  The  criminal 
belongs  to  a  class  distinct  in  itself,  which  has  its  own  peculiari- 
ties, its  own  statistics,  its  own  laws,  and  its  well-defined  relation 
to  society.  He  comes  into  the  world  with  a  defect  in  his  moral 
constitution  and  unless  this  is  counteracted  by  the  proper  edu- 
cating influences,  he  is  in  the  long  run  as  sure  to  commit  crime 
as  are  the  sparks  to  fly  upward.  The  seed  always  produces  its 
kind  in  the  proper  soil.  The  criminal  will  always  fit  his  en- 
vironment. The  murder,  for  instance,  is  the  fruition  of  the  seed 
in  the  proper  ground.  The  act  is  almost  an  instinct  of  his  living. 
To  prevent  it  would  be  to  kill  him  before,  not  after  it  is  done,  or, 
better  still,  we  should  be  able  to  forbid  the  matrimonial  bans  of 
his  ancestors.  All  this  goes  to  show  how  far  back  lie  the  causes 
of  the  crime.  It  is  a  latent  principle  in  his  very  blood  that 
awaits  the  ferment  of  unguarded  passion. 

These  seeds  of  crime  are  being  sown  constantly  in  our  midst, 
and  in  the  present  state  of  society  such  will  be  the  case,  do  what 
we  will  to  prevent  it.  We  can  no  more  guard  against  this 
condition  of  things  by  executing  criminals  than  we  can  by  de- 
stroying the  fruit  of  one  seed  hinder  other  and  similar  seeds 
from  taking  root.  We  are  thus  attacking  the  eflfect  rather  than 
the  cause.     But  the  real  cause  in  the  individual  is  mostly  be- 


CAPITAL    PUNISHMENT  35 

yond  our  reach.  We  have  no  means  of  knowing  his  procliv- 
ities towards  murder  until  the  deed  is  done.  Even  if  it  were 
otherwise  the  gallows  would  have  no  more  terrors  for  him 
than  for  any  other  man.  Until  after  the  murder  is  accom- 
plished he  has  been  accustomed  to  believe  that  the  guillotine 
or  the  rope  was  intended  for  some  one  else.  No  individual, 
no  matter  how  depraved  he  is,  ever  expects  to  be  a  murderer, 
and,  consequently,  he  never  feels  the  need  of  the  lesson  from  the 
scaffold.  If  he  learns  it  at  all,  it  is -too  late  either  to  do  any 
good  to  his  victim  or  himself. 

We  say  that  it  is  necessary  when  deeds  are  done  that  man 
should  fit  his  environment.  It  is  quite  true  that  society  in  its 
retroactive  inifiuence  has  as  much  to  do  with  the  commission 
of  the  crime  as  does  the  criminal.  There  is  a  social  as  well 
as  a  physical  law  for  crime.  Given  a  certain  condition  of  so- 
ciety and  the  ratio  of  murders  is  always  the  same,  no  matter 
how  severe  the  punishment  for  the  crime  may  be.  The  mere 
fear  of  the  death  sentence"  apparently  has  no  effect  upon  the 
would-be-criminal.  If  it  were  otherwise,  we  should  expect  a 
proportionate  decrease  in  the  number  of  murders  committed 
as  compared  with  the  number  and  severity  of  the  executions. 
But,  strangely  enough,  the  number  of  murders  never  varies. 
It  is  as  constant  as  the  birth  rate  and  the^ieath  rate.  We  have 
an  individual  with  certain  instincts  on  one  side  and  a  certain 
condition  of  his  surroundings  on  the  other,  and  we  predict  the 
result  with  a  mathematical  certainty. 

It  may  be  a  comforting  thought  that  crime  is  prevented  by 
punishment,  that  a  great  many  who  might  be  murderers  are  de- 
terred from  becoming  such  by  the  death  penalty,  but  we  have 
no  means  of  proving  it.  It  is  hard  to  estimate  how  a  thing 
which  does  not  happen  is  prevented  from  happening.  When  we 
argue  from  such  premises  we  are  swinging  around  a  circle  of 
negative  proportions.  When,  however,  we  start  from  a  fixed 
point,  when  we  actually  know  the  exact  rates  of  certain  crimes, 
we  expect  if  there  is  any  good  in  certain  so-called  deterrent  in- 
fluences, to  see  the  results  in  lowering  the  crime  record.  If  the 
fear  of  death  has  had  any  real  influence  in  that  direction,  it 


w 

^^u^'^^ 


36 


SELECTED  ARTICLES 


should  have  shown  itself  long  ago.  It  has  had  no  effect  on 
the  criminals  who  crop  up  year  after  year,  keeping  the  roster 
full.  -  Why  did  not  the  last  murderer  fear  the  gallows  in  time 
to  avoid  it2_We  know  he  did  not,  that  the  next  criminal  will 
not,  and  yet  we  go  on  talking  of  the  necessity  for  capital  pun- 
ishment-r-  If  fear  of  the  death  penalty  deserved  a  tithe  of  its 
claim  as  a  preventive  of  murder,  the  crime  would  long  ago  have 
been  banished  from  the  face  of  the  earth.  It  should  certainly 
have  proved  its  utility  by  this  time.  No  matter  what  theory  may 
be  advanced  as  to  the  prevention  of  murder,  it  is  quite  evident 
that  the  fear  of  execution  is  not  one  that  can  be  demonstrated 
by  the  facts  of  experience.  So  far  as  we  can  see,  the  dread 
does  not  show  itself  until  the  criminal  cools  his  passion  and  has 
opportunities  for  reflection. 

Naturally  at  this  stage  of  the  discussion  comes  the  question, 
Why  kill  the  criminal  at  all?  If  society  wishes  to  enforce  the 
estimation  of  the  value  and  sanctity  of  human  life,  why  does 
it  take  life  itself  for  any  reason?  Even  an  enlightened  and 
powerful  commonwealth  has  no  excuse  for  allowing  two  mur- 
ders for  one  crime.  If  we  really  desire  to  show  our  horror 
of  killing,  we  should  have  it  understood  by  word  and  act  that 
so  precious  is  human  life  that  even  the  murderer  shall  not  be 
deprived  of  ijQ     *^. 

When  we  are  unable  to  prove  that  execution  has  a  deterrent 
effect  upon  murder,  when  we  do  not  wish  to  have  it  said  that 
such  a  punishment  is  dictated  by  revenge,  the  real  question  nar- 
rows itself  to  that  of  protecting  society  by  doing  away  with 
the  criminal  in  the  simplest  and  most  effectual  manner,  Prac- 
tically in  the  present  state  of  our  knowledge  ever3'thing  must 
turn  upon  this.  But  must  we  necessarily  kill  him  to  get  rid  of 
him?  4  Life  imprisonment  becomes  the  only  satisfactory  solu- 
tion to  this  problem.  Society  by  such  means  absolves  itself  from 
the  crime  of  a  second  murder,  and  as  securely  guards  itself  from 
future  harm  as  if  the  criminal  were  dead  already.'l^he  culprit 
is  simply  left  to  his  own  punishment,  which  is  ample  and  severe 
enough.  What,  indeed,  is  more  dreadful  than  the  remorse  of 
a  blighted  life ;   what  greater  torture  could  be   devised  by  the 


CAPITAL    PUNISHMENT  2,7 

most  revengeful  man  ?^  No  argument  is  needed  to  prove  this. 
History  and  tiction  vie  with  each  other  in  depicting  the  horrors 
of  a  bad  conscience.  The  most  thrilling  terrors  have  it  as  their 
dark  background.  It  is  the  cold  shadow  by  day  and  the  black 
wing  by  nighti^CThere  need  be  no  fear  on  the  part  of  those 
who  even  believe  in  the  severest  measures  on  ounishing  mur- 
der  that  imprisonment  for  life  is  not  sufficientV  Even  the  ma- 
jority of  criminals  prefer  hanging  when  they' Wiow  that  this 
form  of  confinement  is  sure.  In  order  to  be  effective,  how- 
ever, it  must  be  so!VThe  conviction  of  the  murderer  must  be 
certain.  Let  the  trfal  be  as  thorough  as  law  and  justice  can  / 
make  it,  but  let  the  sentence  be  final,  without  the  chance  of 
technical  appeal,  executive  clemency,  or  other  hope  for  pardon. 
Let  the  criminal  know  and  fed  that  there  is  nothing  for  him 
outside  of  his  cell,  that  he  is  as  dead  to  the  world  as  if  he 
had  swung  upon  the  gibbet.  When  he  is  made  to  realize  this,  * 
he  has  the  mark  of  Cain  upon  him,  and  his  punishment  is  as 
great  as  he  can  bear.  It  is  not  difficult  to  imagine  that  the 
knowledge  of  such  a  fate  awaiting  the  wrong  doer  would  have 
a  far  more  deterrent  effect  than  the  most  horrible  execution 
imaginableS^  It  has  been  often  said  that  you  cannot  put  a  man 
to  a  worse  use  than  to  kill  him.  This  is  eminently  true,  even 
with  a  criminal.  Something  good  can  be  obtained  from  the  most 
depraved  characters.  They  can  at  least  be  made  to  work  and 
thereby  benefit  society.  Better  still,  perhaps,  they  may  be  forced 
to  support  by  their  labor'  the  family  of  their  victim.  > 

Viewing  the  murderer  as  a  bad  man  and  one  who  is  in  dan- 
ger of  contaminating  his  fellow  prisoners,  it  would  be  neces- 
ary  to  keep  him  by  himself — a  moral  leper  from  whom  others 
should  be  protected.  An  effectual  way  of  accomplishing  this 
would  be  the  construction  of  prisons  in  each  state  solely  for 
murderers,  and  the  placing  of  them  in  charge  of  experienced 
disciplinarians,  who  should  have  ample  powers  for  carrying  out 
the  strictest  letter  of  the  law. 

Scientifically  speaking,  if  such  prisons  were  established,  much 
good  might  be  gained  by  the  study  of  criminal  character.  Every- 
thing is  to   be  learned   in  this   direction   if   we  would   gain   a 


^v 


38  SELECTED  ARTICLES 

rational  insight  of  the  causes  and  prevention  of  crime.  The 
want  of  some  positive  knowledge  on  these  points  explains,  in 
part  at  least,  the  reason  why  we  still  kill  murderers.  We  should 
study  their  characteristics  as  we  do  the  symptoms  of  a  dis- 
ease, as  we  do  fevers  in  our  hospitals  and  insanity  in  our  asy- 
lums. What  valuable  statistics  could  thus  be  obtained  if  the 
hereditary  predispositions  that  worked  their  sad  result  in  each 
case  could  be  properly  classified,  if  the  influences  of  particular 
environments  upon  the  individual  could  be  carefully  noted  and 
if  the  varied  psychological  processes  which  made  murder  al- 
most a  foregone  conclusion  could  be  rightly  understood ;  we 
could  thus  make  an  autopsical  examination  of  the  dead  char- 
acter as  effectually  useful  in  the  collection  of  trustworthy  data, 
as  we  could  a  similar  study  by  the  use  of  the  dissecting  knife 
upon  an  equally  veritable  cadaver,  r  Let  us  punish  the  criminal  —X 
If  we  will;  let  us  brand  him  with  his  mark;  let  us  show,  if 
you  please,  that  society  is  outraged  by  his  doings ;  let  us  make 
his  punishment  as  severe  as  possible  and  thus  deter  others  from 
crime  if  we  can, — but  while  we  are  lookinp^  for  m^ye  lip^kt^ 
}et  us  study  him,  not  kill  him.  NThere  are  laws  for  crime  which 
are  as  well  founded  as  those/for  the  winds,  the  tides,  light  and 
darkness,  birth  and  death,  even  suicide  and  so-called  accident. 
The  whole  philosophy  of  jurisprudence  must  be  based  upon  a 
proper  understanding  of  them.  Exhaustive  statistics  are  at 
hand  waiting  for  the  earnest  student  to  marshal  them  in  the 
lines  of  legitimate  deduction.  We  may  yet  discover  where  the 
real  responsibility  for  crime  belongs ;  we  may  be  able  in  time 
to  demonstrate  which  is  most  to  blame,  the  instincts  of  the 
criminal  or  the  influences  of  the  society  in  which  he  lives  and 
moves.  But  what  if  in  the  end  society  itself  were  found  most 
at  fault  in  the  first  as  well  as  in  the  second  killing?  What  new 
application  could  then  be  made  for  the  deterrent  doctrine  with 
the  blood-cry  of  the  common  murderer  in  our  ears?  How  could 
justice  strike  the  balance?  On  which  side  would  the  weight 
of  censure  be  placed?  Might  not  even  the  death  chair  itself 
be  the  fitting  judgment  seat  from  which  to  pass  the  sentence? 


CAPITAL    PUNISHMENT  39 

Canadian  Magazine.  2:467-75.  March,   1894. 
^ — Ueath   Penalty.     John  Ferguson. 

The  state  is  the  sum  total  of  the  will  of  the  people;  and 
as  such  has  no  feeling  one  way  or  the  other  in  this  matter. 
The  duty  of  the  state  is  to  do  justly  in  all  things  pertaining 
to  the  weal  of  every  citizen.  Viewed  from  this  standpoint, 
the  state  has  some  important  functions  to  fulfil. 

One  of  the  first  problems  the  state  has  to  solve  is  to  allot 
to  each  offender  a  punishment  suitable  to  the  crime  and  the 
nature  of  the  criminal.  This  latter  aspect  of  the  case  must 
never  be  lost  sight  of.  The  recidivist  must  be  treated  in  a 
very  different  manner  from  the  person  who  for  the  first  time  -s 
commits  some  petty  offence.  The  punishment  should  be  ad-  J 
justed  to  the  person   rather  than  the  crime.   .  .   .   Among  the  ^ 

hardest  criminals  to  reform  are  vagrants  and  habitual  drunk- 
ards. On  the  other  hand,  among  the  most  easily  reformed 
are  persons  who  have  committed  a  serious  crime  under  con- 
ditions that  might  never  recur.  Clearly  then,  the  duty,  of  the 
state  is  to  fit  the  punishment  to  suit  each  case,  and  the  basis 
for  this  adjustment  must  be  the  offender — not  the  offence.  ^ 


Charities.  15:248-9.     November  18,  1905. 
Capital  Punishment  Denounced. 

Blood  and  flame,  an  eye  for  an  eye,  a  tooth  for  a  tooth,  talon 

md  claw — these  old  watchwords  of  primitive  retaliation  were 

lade  use  of  in  a  scathing  arraignment  of  capital  punishment 

'in  the  report  of  the  Committee  on  Enforcement  of  Law,  of  which 

Dr.  William  O.  Stillman  of  Albany  is  chairman.    In  part  he  said : 

"This  committee  desires  to  draw  renewed  attention  to  that 
well-known  and  justly  lauded  principle  developed  in  the  mod- 
ern 'enforcement  of  laiif  which  seeks  the  reformation  of  the 
criminal  for  his  own  good,  as  well  as  for  the  benefit  of  society, 
'  rather  than  the  exhibition  of  mere  legal  revenge  or  even  ex- 
emplary punishment  which  has  been  the  prolific  mother  of  habit- 


40  SELECTED  ARTICLES 

ual  criminalism.  We  cannot  be  too  thankful  that  the  old 
theory  of  criminal  law,  which  was  in  primitive  states  largely 
retaliatory  and  in  more  advanced  forms  of  govcrnm'ent  be- 
comes pmiitive  or  exemplary,  is  rapidly  becoming  obsolete.  We 
think  that  penologists  are  every  day  realizing  more  strongly 
the  futility  of  the  severe  treatment  of  prisoners.  The  law 
of  the  moral  world  is  like  that  of  the  physical  and  intellectual. 
Like  begets  like.  Savagery  begets  savager}-.  Legal  brutality 
educates  a  brutal  populace.  What  chance  is  there  for  reform 
of  an  evil-doer  if  you  have  destroyed  all  his  self-respect  and 
caused  him  to  harbor  resentment  instead  of  proper  hopes  and 
ambitions  ? 

"A  great  blot  still  lingers  on  our  conception  and  practice 
of  criminal  law.  It  is  an  example  of  primitive  retaliation,  of  an 
eye  for  an  eye  and  a  tooth  for  a  tooth ;  a  relic  of  a  remote  past 
when  talon  and  claw  were  the  only  law,  a  theory  in  our  en- 
lightened times  as  indefensible  in  its  principle  as  it  is  useless 
and  debasing  in  its  practice.  The  infliction  of  capital  punish- 
ment, which  is  practically  limited  to  homicides  in  civilized  coun- 
.  tries,  is  a  stain  on  our  civilization  and  should  be  abolished.  In 
j  its  place,  when  habitual  and  desperate  criminality  has  reached 
'  the  limit  fixed  by  a  wise  and  tolerant  society,  should  be  sub- 
stituted special  prisons  which  should  become  permanent  re- 
positories for  these  lost  members  of  mankind.  These  should 
be  rendered  as  silent  and  inexorable  as  the  tomb.  Release  should 
be  permitted  only  upon  action  of  the  highest  court  upon  posi- 
tive proof  of  innocence.  The  inmates  should  be  forever  re- 
moved from  a  continuance  of  their  evil  practices  but  not  beyond 
the  opportunity  for  repentance  and  spiritual  expiation. 

"It  is  a  law  of  human  development  that  severe  punishment 
does  not  reform  or  deter.  It  does  not  change  character  or 
belief.  It  does  not  produce  that  conviction  of  mind  which  is 
essential  for  moral  elevation.  On  the  contrary,  it  excites  re- 
action, a  reflex  hardening,  an  antagonism,  and  so  defeats  its 
own  purpose.  Who  ever  heard  of  physical  abuse  or  perse- 
cution, however  extreme  and  rigorous,  stamping  out  a  right-  , 
eous  cause  or  an  evil  cabal.    Reformations,  political  or  religious, 


u 


f  ^  CAPITAL    PUNISHMENT  41 

have  ever  flourished  best  on  the  blood  of  their  leaders,  and 
vice  has  waxed  under  the  shadow  of  the  gallows.  Each  ex- 
treme has  had  its  martyrs  to  the  wild  beast  in  the  spirit  of 
man.  Blood  and  flame  have  ever  been  impotent  against  that 
impalpable  thing,  a  condition  of  mincl.  Progress,  purity  and 
peace,  must  come  from  the  heart  and  the  intellect  developed 
in  conjunction.  Violence  cannot  reach  the  fountains  of  right 
living. 

"The    arguments    against    capital    punishment    may    be    sum- 
marized as  follows : 
k  "i.     The  strongest  argument  is  that  it  prevents  enforcement 

*     /oty  law.    Conviction  is  rare  in  cases  of  murder.     During  the  last 
/  t^^enty-two    years    previous    to    1963    out    of    129,464    homicides 
m  the  United  States  but  2,611  murderers  were  executed. 

"2.  It  ,does  not  deter  from  the  commission  of  murder.  In 
1881  there  were  24.7  murders  to  each  million  of  the  population. 
In  1883  the  number  had  reached  112.  There  are  fewer  mur- 
ders in  states  which  have  abolished  the  death  sentence,  hs  in 
Maine  and  Wisconsin,  than  in  New  York  and  Pennsylvania, 
which   still   retain  it. 

"3.     Innocent    individuals    are    occasionally    executed,    which 
makes  the  state  a  murderer  of  the  worst  kind.     Capital  punish      ^ 
ment  prevents  reparation  in  cases  of  subsequently  proven  inno- 
cence. 

"4.  Two  or  more  men,  organized  under  a  form  of  gov- 
ernment, have  no  more  right  to  take  life  than  one  man  has.  It 
is  murder  in  either  case  and  brutalizing  in  both.  ^^^ 

''5.     The    sanctioning    of    capital    punishment    degrades    and      / 
hardens  any  community  which  allows  it  to  stand  as  its  highest^ 
ideal  in  dealing  with  any  crime, 
ilV       "6.     It  is  certainly  a  relic  of  barbarism.     To  abolish  it  would 
\     be   a   step   forward.     As   civilization  has   advanced   J)unishment 
has  always  become  less  severe  and  crime  has  also  become  less 
common.     The  old  law  of  retaliation  is  obsolete. 

"7.  Capital  punishment  usually  deprives  the  criminal  of 
the  one  due  which  civilized  society  owes  its  unfortunate  chil- 
dren of  this  class,  the  chance  for  spiritual  reformation  and  ex- 
piation, to  prepare  for  the  hereafter, 


42  SELECTED  ARTICLES 

"8.  Life  imprisonment  is  a  severer  and  juster  punishment 
for  a  murderer  than  to  be  given  early  his  earthly  quietus.  Those 
states  which  sanction  legal  murder  do  more;  they  murder  civ- 
ilization." 


Fortnightly  Review.  52:322-33.     September,   1889. 

Case  agaiiTfet  Capital  Punishment.     B.  Paul  Neuman. 

"Forasmuch  as  the  ende  of  their  wrath  and  punyshmente  in- 
tendeth  nothyngeV  elles  but  the  destruction  of  vices  and  savynge 
of   menne." — Utop^   (Arber's   edition,    p.    50). 

In  these  wordsNthe  noble-hearted  More  laid  down  a  prin- 
ciple which  the  penAl  code  of  his  own  country  has  consistently 
violated.  For  his  language  clearly  points  to  reformation  as 
the  object  of  punishment,  and  English  law  has  persistently 
clung  to  that  one  form  of  punishment  which  makes  reformation 
almost  impossible  unless  by  a  miracle.  In  More's  own  time 
and  in  the  reign  of  Elizabeth  the  proportion  of  executions 
to  the  number  of  the  population  is  almost  incredible,  while  as 
late  as  the  reign  of  George  III.  there  were  on  the  statute  book 
something  like  two  hundred  crimes  punishable  with  death.  No 
doubt  in  many  cases  the  law  w^s  a  dead  letter,  but  even  so, 
the  state  of  things  was  a  scandal  to  the  rest  of  the  civilised 
world.  Well  might  Mirabeau  say :  'The  English  nation  is  the 
most  merciless  of  any  that  I  have  heard  or  read  of."  Douglas 
Jerrold,  a  writer  by  no  means  given  to  "sentimentalism,"  draws 
a  picture  of  Georgian  justice: — 

The  Lords  of  the  Privy  Council  had  met  with  good  King 
George  III.  at  their  head  to  correct  the  vices  of  the  land..  There 
was  death  for  the  burglar,  death  for  the  foot-pad,  death  for  the 
sheep-stealer,  death,  death,  death  for  a  hundred  different  sinners. 
The  hangman  was  the  one  social  physician,  and  was  thought  to 
cure  all  peccant  iUs.  Horrible,  ghastly  quack!  And  yet  the 
King's  Majesty  believed  in  the  hideous  mountebank,  and  every 
week,  by  the  advice  of  his  Lords  of  the  Council — the  wise  men  of 
St.  James's,  the  Magi  of  the  kingdom,  the  starred  and  gartered 
philanthropists — every  week  did  sacred  royalty  call  in  Jack  Ketch 
to  cure  his  soul-sick  children!  Yea;  it  was  with  the  hangman's 
fingers  that  the  father  of  his  people  touched  the  people's  evil. 
And  if  in  sooth  the  malady  was  not  allayed,  it  was  not  for  lack 
of  paternal  tending,  since  we  find  from  the  Old  Bailey  Register- 
that  thing  of  blood  and  bigotry  and  ignorance — that  in  one  little 
year,  in  almost  the  first  twelve  months  of  the  new  drop,  the  hang- 
man was  sent  to  ninety-six"  wretches  who  were  publicly  cured  of 


I 


/ 


CAPITAL    PUNISHMENT  43 


their  . ^^  in  tlie  front  of  Newgate!  And  the  King  in  Council 
thought  tbere  was  no  such  remedy  for  crime  as  the  grave;  and 
therefore  by  the  counsel  of  his  privy  sages  failed  not  to  prescribe 
death  warrants.  To  reform  men  was  a  tedious  and  uncertain 
labour;  now  hanging  was  the  sure  work  of  a  minute. 

Slowly  and  in  the  face  of  strenuous  opposition  from  "strong" 
judges  and  weak  prelates  the  statute-book  was  purged  of  most 
of  these  monstrous  enactments,  until  at  the  present  day,  put- 
ting on  one  side  martial  law,  the  capital  penalty  is  inflicted 
only  in  cases  of  treason  or  murder.  It  is  pretty  generally  ad- 
mitted that  increase  of  crime  has  not  followed  the  successive 
relaxation  of  the  penal  code,  and  hence  the  question  has  been 
of  late  years  constantly  mooted: — Why  retain  the  penalty  of 
death  at  all?  How  uneasy  and  unsatisfied  public  opinion  is 
at  the  present  time,  is  shown  by  the  fact  that  when  sentence 
of  death  has  been  passed,  in  almost  every  case  an  agitation  for 
a  reprieve  follows  as  a!  matter  of  course.  The  remarkable 
outbreak  of  feehng  in  the  Maybrick  case  has  furnished  the 
most  recent  illustration  of  this  dissatisfaction.  Men  are  hap- 
pily growing  less  and  less  enamoured  of  that  robust  civic  vir- 
tue which  often  appears  so  excellent  an  imitation  of  cynical 
indifference.  The  sacrifice  of  an  innocent  life,  however  rare, 
is  felt  to  be  a  heavy  price  even  though  it  purchased  for  the 
rest  of  us  comparative  immunity  from  crime.  Mr.  John  Bright, 
speaking  at  University  College,  London,  a  few  years  ago, 
expressed  a  pathetic  hope  he  might  live  long  enough  to  see 
the  uprooting  of  the  gallows-tree.  It  still  flourishes  and  brings 
forth  fruit  after  its  kind,  but  his  was  the  hand  that  laid  the  axe 
to  its  root. 

The  literature  of  the  subject,  though  sufficiently  copious, 
is  not  very  accessible  to  the  ordinary  reader,  being  for  the 
most  part  contained  in  Blue  Books  and  in  Hansard's  reports. 
Perhaps  this  may  explain  why,  in  spite  of  the  interest  shown 
in  particular  cases,  so  few  people  take  the  trouble  to  inform 
themselves  accurately  upon  the  general  question.  In^any  case 
it  may  be  useful  to  recapitulate  and  summarise  the  facts  and 
arguments  upon  which  the  opponents  of  capital  punishment 
take  their  stand. 


44  SELECTED  ARTICLES 

There  will  probably  be  little  difference  of  opinio  ^^^"l?)  the 
ultimate  objects  of  punishments.    They  are : — 

(i)  The  protection  of  society;  (2)  the  reformation  of 
the  criminal. 

Some  persons  might  be  disposed  to  add  a  third,  namely  the 
vindication  of  the  outraged  majesty  of  the  law;  but  this,  if 
analysed, .will  be  found  either  to  fall  under  (i)  or  else  to 
be  only  a  euphemism  for  revenge. 

Bearing  in  mind  these  objects,  let  us.  next  inquire  what 
are  the  tests  or  marks  of  suitability  to  be  applied  to  any  par- 
ticular punishment.  The  most  important  of  these  tests  appear 
to  be  the  following: — 

(i)  .   It  should  be  capable  of  certainty  in  application.  ^ 

(2)  It  should  be  susceptible  of  graduation. 

(3)  It  should  be  revocable. 

(4)  It  should  be  of  a  reformatory  character. 

(5)  It  should  not  shock  the  moral  sense  of  the  community. 

(6)  It  should  not  destroy  sources  of  evidence. 

(7)  It  should  be  an  efficient  deterrent. 

Let  us  try  the  punishment  of  death  by  these  tests. 
(i)     As  to  the  certainty  of  application. 

"If  it  were  possible,"  says  Sir  Samuel  Romilly,  "that  punish- 
ment, as  the  consequence  of  guilt,  could  be  reduced  to  absolute 
certainty,  a  very  slight  penalty  would  be  sufficient  to  prevent 
almost  every  species  of  crime  except  those  which  arise  from  sud- 
den gusts  of  ungovernable  passion." 

The  converse  of  this  proposition  appears  to  hold  good.- 
Where  the  penalty  is  very  heavy  its  incident  is  apt  to  become 
erratic  and  uncertain.  Of  all  punishments  used  by  civilised  na- 
tions the  punishment  of  death  is  most  open  to  this  objection. 
Under  the  old  law,  when  death  was  inflicted  for  rninor  offences, 
this  feature  was  even  more  apparent  than  it  is  at  the  present 
day.  Mr.  Harmer,  a  solicitor  with  a  very  large  Old  Bailey 
practice,  said,  when  examined  before  a  parliamentary  commit- 
tee in  1819 — 

The  instances,  I  may  say,  are  innumerable,  within  my  own  ob- 
servation, of  jurymen  giving  verdicts  in  capital  cases  in  favour  of 
the  prisoner  directly  contrary  to  the  evidence.  I  have  seen  acquit- 
tals in  forgery  where  the  verdict  astonished  everyone  in  court,  be- 

I         cause  the  guilt  appeared  unequivocal,  and  the  acquittal  could  only 
/         be  attributed   to   a   strong   feeling   of   sympathy   and    humanity   in 

■<      the  jury   to   save   a   fellow-creature   from   certain   death.     The   old 


CAPITAL    PUNISHMENT  45 

professed  thieves  are  aware  of  this  sympathy,  and  are  desirous  of 
heingr  tried  rather  on  capital  indictments  than  otherwise. 

The  late  Sergeant  Parry  on  a  subsequent  occasion  gave  the 
following  evidence — 

It  is  a  common  observation  in  our  profession  that  there  is 
nothing  more  difficult  than  to  obtain  a  verdict  of  guilty  from  a  jury 
where  the  charge  is  murder.  It  has  frequently  occurred  that  the 
jury  have  asked — Can  we  find  a  verdict  of  manslaughter?  No, 
you   cannot.     And   the  prisoner   is  allowed   to   go   free. 

It  may  be  objected  that  such  evidence  as  this  has  no  appli- 
cation at  the  present  day,  but  it  is  easy  to  supplement  it  from 
more  recent  sources.  In  the  course  of  a  recent  debate  in  the 
House  of  Commons,  Sir  Colman  O'Loghlen  said  he  had  within 
the  last  forty-eight  hours  prosecuted  a  man  in  County  Cork, 
about  whose  conviction,  but  for  the  penalty  of  death,  he  felt 
certain,  but  who,  as  it  was,  was  acquitted.  Every  one  of  the 
Crown  solicitors  on  the  Munster  Circuit,  and  he  believed,  the 
majority  of  the  judges,  were  of  opinion  that  if  capital  punish- 
ment were  done  away  with  the  number  of  convictions  would 
be  increased.  The  experiment  of  doing  away  with  capital  pun- 
ishment has  been  tried  in  several  of  the  American  states,  and 
the  result  throws  a  light  upon  the  subject  which  only  inveterate 
bigotry  or  stoUd  prejudice  could  venture  to  disregard.  Take, 
for  instance,  the  case  of  Wisconsin.  Writing  to  Mr.  John  Bright 
in  1864,  the  governor  of  that  state  thus  expresses  himself — 

The  evil  tendency  of  public  executions,  the  great  aversion  of 
many  to  the  taking  of  life,  rendering  it  almost  impossible  to  ob- 
tain jurors  from  the  more  intelligent  portion  of  the  community,  the 
liabil:ty  of  the  innocent  to  suffer  so  extreme  a  penalty,  and  be 
placed  beyond  the  reach  of  the  pardoning  power,  and  the  disposi- 
tion of  courts  and  juries  not  to  convict,  fearing  the  innocent  might 
suffer,  convinced  me  that  this  relic  of  barbarism  should  be  abol- 
ished. The  death  penalty  was  repealed  in  1853.  No  legislation 
has  since  re-established  it,  and  the  people  find  themselves  equally 
secure. 

Some  years  later,  in  1873,  we  find  this  passage  in  Governor 
Washburne's  message: — 

There  can  be  no  doubt  that  the  change  in  the  law  has  made 
punishment  more  certain,  and  I  but  express  the  opinion  of  those 
who  have  most  carefully  considered  the  question,  when  I  state 
that  but  for  that  change  in  the  law,  at  least  one-half  of  those 
convicted  would  have  escaped  all  pvmishment — so  difficult  is  con- 
viction when   the  punishment  is  death. 

Reverting  to  1864,  the  governor  of  Michigan  writes : — 

Before  the  abolition  of  the  death  penalty  murders  were  not  un- 
frequeht.  but  convictions  were  rareh'  or  never  obtained.  It  be- 
came the  common  belief  that  no  jury  could  be  found  (the  prisoner 


46  SELECTED  ARTICLES 

availing  himself  of  the  common  law  right  of  challenge)  which 
would  convict.  There  can  be  no  doubt  that  public  opinion  sus- 
tains the  present  law,  and  is  against  the  restoration  of  the  death 
renalty.  Conviction  and  punishment  are  now  much  more  certain 
than  before  the  change  was  made. 

Similarly,  the  Chief  Justice  of  Rhode  Island,  where  the 
death  penalty  has  also  been  abolished,  writes : — 

My  observation  fully  justifies  me  in  saying  that  conviction 
for  murder  is  far  more  certain  now  in  proper  cases  than  when 
death   was   the   punishment   of  it. 

(2)  As  to  susceptibility  of  graduation.  Tt  is  hardly  neces- 
sary to  say  that  scarcely  any  two  instances  of  the  same  species 
of  crime  show  precisely  the  same  degree  of  turpitude;  motive, 
provocation,  surrounding  circumstances,  age,  character,  all  have 
to  be  taken  into  consideration  in  estimating  the  amount  of 
punishment  requisite.  Hence  the  need  for  graduation  in  the 
punishment.  Simple  imprisonment,  hard  labour,  .  penal  servi- 
tude, even  the  lash  are  all  capable  of  more  or  less  accurate 
graduation.  Nowhere  is  there  greater  room  for  diflference 
in  the  degree  of  guilt  than  in  the  case  of  murder,  and  yet  the 
punishment  inflicted  is  one  and  the  same  in  every  case.  In  some- 
cases,  indeed,  even  death  may  be  a  severer  punishment  to  one 
man  than  to  another.  To  a  man  brought  up  in  the  higher  ranks 
of  society  the  social  infamy  and  the  personal  degradation  may 
add  a  sting  to  the  punishment  which  may  be  entirely  absent  in 
the  case  of  one  less  fortunate  in  his  birth.  But  this  distinction 
which  in  other  punishments  can  be  taken  into  account  and  al- 
lowed for.  operates,  in  the  case  of  death,  altogether  independent- 
ly of  the  judge.  Hence  it  may,  and  no  doubt  often  has  hap- 
pened, that  the  punishment  has  borne  most  heavily  where  the ' 
guilt  was  lightest. 

(3)  As  to  revocability.  Here  again  it  is  perfectly  obvious 
that  of  all  punishments,  that  of  death  is,  tried  by  this  standard, 
the  most  unsatisfactory.  For  although  it  is  perfectly  true  that  in 
one  sense  all  punishment  is  irrevocable  as  soon  as  it  has  com- 
menced to  operate,  yet  in  every  other  case,  as  long  as  the  victim  is 

'alive,  it  is  possible  either  to  remit  a  portion  of  the  sentence  or  to 
make  substantial  reparation.  If,  therefore,  it  can  be  shown  that 
there  is  an  appreciable  danger  of  so  fatal  a  miscarriage  of  justice, 


CAPITAL    PUNISHMENT  47 

most  people  would  freely  admit  that  the  case  against  capital  pun-^ 
ishment  is  a  very  serious  one.  The  risk  of  such  a  mi^eafrlage 
might,  no  doubt,  be  lessened  by  the  adoption  oftJiafSimpIe  meas- 
ure of  reform  which  for  so  many  years4»<'clamoured  vainly  at 
our  gates — the  creation  of  a  Court  of  Criminal  Appeal.  Even 
then,  however,  the  danger  would  not  be  removed,  and  the  argu- 
ment against  capital  punishment  would  to  many  minds  still  re- 
main overwhelming. 

>sliiow,  what  are  the  facts  of  the  case? 

/  Some  time  ago  Sir  James  Mackintosh,  a  most  cool  and  dis- 
passionate observer,  declared  that,  taking  a  long  period  of  time, 
one  innocent  man  was  hanged  in  every  three  years.  The  late 
Chief  Baron  Kelly  stated  as  the  result  of  his  experience  that 
from  1802  to  1840  no  fewer  then  twenty-two  innocent  men  had 
been  sentenced  to  death,  of  whom  seven  were  actually  executed. 
These  terrible  mistakes  are  not  confined  to  England :  Mittermaier 
refers  to  cases  of  a  similar  kind  in  Ireland,  Italy,  France,  and 
Germany.  In  comparatively  recent  years  there  have  been  sev- 
eral striking  instances  of  the  fallibility  of  the  most  carefully  con- 
stituted tribunals.  1  In  1865,  for  instance,  an  Italian,  named  Peliz- 
zioni,  was  trietHJ^ore  Baron  Martin  for  the  murder  of  a  fellow- 
countryman  in  an  affray  at  Saffron  Hill.  After  an  elaborate 
trial  he  was  found  guilty,  and  sentenced  to  death.  In  passing 
sentence  the  Judge  took  occasion  to  make  the  following  remarks, 
which  should  always  be  remembered  when  the  acumen  begotten 
of  a  "sound  legal  training"  and  long  experience  is  relied  on  as  a 
safeguard  against  error  : — 

In  my  judgment  it  was  utterly  impossible  for  the  jury  to  have 
come  to  any  other  conclusion.  The  evidence  was  about  the  clear- 
est and  the  most  direct  that  after  a  long  course  of  experience  in 
the  administration  of  criminal  justice  I  have  ever  known.  .  .  . 
I  am  as  satisfied  as  I  can  be  of  anything  that  Gregorio  did  not 
inflict   this  wound,^and  that  you  were  the  person  who  did. 

The  trial  was  over.  The  Home  Secretary  would  most  cer- 
tainly, after  the  Judge's  expression  of  opinion,  never  have  in- 
terfered. The  date  of  the  execution  was  fixed.  Yet  the  unhappy 
prisoner  was  guiltless  of  the  crime  and  it  was  only  through  the 
exertions  of  a  private  individual  that  an  innocent  man  was 
saved  from  the  gallows.       A  fellow-countryman  of  his,  a  Mr. 


48  SELECTED  ARTICLES 

Negretti,  succeeded  in  persuading  the  real  culprit  (the  Gregorio 
so  expressly  exculpated  by  the  Judge)  to  come  forward  and 
acknowledge  the  crime.  He  was  subsequently  tried  for  man- 
slaughter and  convicted,  while  Pellizioni  received  a  free  pardon. 

Again  in  1877  two  men  named  Jackson  and  Greenwood  were 
tried  at  the  Liverpool  Assizes  for  a  serious  offence.  They  were 
found  guilty.  The  Judge  expressed  approval  of  the  verdict  and 
sentenced  them  to  ten  years'  penal  servitude.  Subsequently  fresh 
facts  came  to  light  and  the  men  received  a  free  pardon. 

Once  more,  in  1879  Habron  was  tried  for  the  murder  of  a 
policeman.  He  was  found  guilty  and  sentenced  to  death.  An 
agitation  for  a  reprieve  immediately  followed.  The  sentence 
was  commuted  to  penal  servitude  for  life.  Three  years  after, 
the  notorious  Peace,  just  before  his  execution  for  the  murder  of 
Mr.  Dyson,  confessed  that  he  had  committed  the  murder  for 
which  Habron  had  been  sentenced. 

With  these  incidents  fresh  in  our  minds,  let  us  turn  once  more 
to  5"/.  Giles  and  St.  James,  and  listen  to  the  indignant  words  of 
Douglas  Jerrold: — 

Oh  that  the  ghosts  of  all  the  martjTs  of  the  Old  Bailey — and 
though  our  profession  of  faith  may  make  moral  antiquarians. stare, 
it  is  our  invincible  belief  that  the  Xeicgate  Calendar  has  its  black 
array  of  martyrs;  victims  to  ignorance,  perverseness,  prejudice: 
creatures  doomed  by  the  l>igotiy  of  the  council  table;  by  the  old 
haunting  love  of  blood  as  the  best  of  cures  for  the  worst  of  ills — 
oil,  that  the  faces  of  all  of  those  could  look  from  Newgate  walls! 
That  but  for  a  moment  tlie  men  who  stickle  for  the  laws  of  death  as 
for  some  sweet  domestic  privilege,  might  behold  the  grim  mistake; 
the  awful  sacrilegious  blunder  of  the  past,  and  seeing,  make 
amendment  for  the  future. 

(4)     As  to  its  reformatory  character. 

It  was  boldly  asserted  by  Mr.  Roebuck  in  the  House  of  Com- 
mons that  a  murderer  was  not  to  be  reformed.  Few  humane  or 
reasonable  people  will  be  inclined  to  endorse  such  a  statement, 
least  of  all  those  who  look  up  with  reverence  to  Him  who  came 
to  seek  and  to  save  that  which  was  lost.  It  must  be  remembered, 
too,  in  this  connection  that  many  of  those  convicted  for  murder 
are  quite  young.  Thus  in  three  years,  from  1878  to  1881,  there 
were  among  such  criminals  young  men  of  18,  20,  21,  22,  23,  24, 
26,  and  27.  Then  the  circumstances  of  the  criminal  class  from 
which  many  of  these  cases  come  ought  surely  to  be  taken  into 


CAPITAL    PUNISHMENT 


49 


r 


account.  Born  in  vicious  homes,  brought  up  amid  the  vilest  sur- 
roundings, the  abject  slaves  of  their  own  worst  passions,  it  is  not 
too  much  to  say  that  sometimes  the  prison  chaplain's  is  the  first 
good  influence  that  seriously  touches  the  convict's  life.  But  think 
of  the  cruel  irony  of  giving  three  weeks  in  which  to  reverse  the 
habits  of  long  years !  Nor  is  this  the  worst.  At  the  present  day, 
except  under  very  unusual  circumstances,  efforts  to  obtain  a  re- 
prieve almost  always  follow  a  conviction  for  murder.  Of  these 
efforts  the  prisoner  is  of  course  aware.  Hence,  though  guilty, 
he  feels  he  has  still  a  chance  of  life  if  he  can  lie  hard  enough  to 
create  a  doubt  in  the  Home  Secretary's  mind.  At  the  very  foot 
of  the  gallows,  therefore,  he  goes  on  adding  sin  to  sin,  and  too 
often  invoking  the  name  of  God  to  witness  to  his  falsehood. 

(5)     As  to  its  accord  with  the  moral  sense  of  the  community  *    /( 
It  is  nothing  less  than  a  disaster  when  the  public  sympathy  is  en-^^N^ 
listed  against  the  law  and  in  favour  of  the  criminal.    Yet  this  is         \^v 
what  constantly  happens  now  in  cases  of  murder.     In  the  old  days  \      ^ 

the  highwayman  on  the  road  was  an  unmitigated  nuisance,  but,  \ 

once  trapped,  he  became  a  hero.  Many  a  Beau  Brocade  has  gone 
to  Tyburn  amid  something  very  like  a  popular  triumph.  And  this 
short-lived  popularity  he  owed  partly  to  the  feeling  that  his  pun- 
ishment exceeded  his  deserts,  and  partly  to  the  sympathy  which 
is  almost  always  extorted  by  the  sight  of  a  man  engaged  in  a 
struggle  for  dear  life.  Both  these  sentiments  still  operate  in  the 
case  of  those  sentenced  to  death.  It  is  the  spectacle  of  a  desper- 
ate man  fighting  for  his  life  against  overwhelming  odds  that  in- 
vests the  lives  of  such  scoundrels  as  Burglar  Peace  and  Bush- 
ranger Kelly  with  quite  a  halo  of  romance.  Then,  too,  it  is  now 
recognized  that  the  crime  of  murder  is  not  separated  from  all 
other  crimes  by  such  a  gulf  as  to  make  it  justly  visited  by  a  pen- 
alty inflicted  in  no  other  case.     Take  a  simple  instance. 

A,  a  half-starved  miserable  tramp,  goes  out  on  a  lonely  coun- 
try road  armed  with  a  knife,  intending  to  rob  the  first  passer- 
by. A  farmer  returning  from  market  comes  along.  A  demands 
his  money,  is  refused,  and  in  the  struggle  that  follows,  stabs  him 
to  the  heart. 

B,  a  well-to-do  artisan,  has  a  grudge  against  X,  a  former  em- 
ployer, who  has  dismissed  him  for  gross  misconduct  and  refused 


50  SELECTED  ARTICLES 

to  give  him  a  character.     He  purchases  a  dagger-knife,  waylays  X 
at  night  in  a  field,  and  makes  a  desperate  stab  at  his  heart.    The 
knife,  however,  strikes  against  a  sandwich  box  in  X's  pocket,  and 
the  intended  victim  escapes  absolutely  uninjured. 
'  Now  of  the  two,  as  far  as  moral  guilt  is  concerned,  B's  offence 

rj     is  the  blacker,  yet  A  will  be  hung  while  B  will  escape  with  a 
term  of  penal  servitude  liable  to  abridgment  on  ticket  of  leave. 

There  is,  however,  no  need  for  particula^r  instances.  There 
are  offences  which,  whether  looked  at  from  the  point  of  view  of 
the  guilt  involved,  or  from  that  of  the  suffering  entailed,  are  more 
grievous  and  terrible  than  many  a  murder ;  yet  the  offenders 
either  escape  scot-free  or  with  wholly  inadequate  punishment. 
Hence  in  case  after  case  of  murder  the  punishment  seems  too 
heavy  for  the  offence,  and  hence  the  now  almost  invariable 
^    agitation  for  a  commutation  of  the  sentence. 

'"Another  circumstance  that  has  to  be  taken  into  account  is 
that  the  religious  sentiment  of  the  country  is  growing  more  and 
more  antagonistic  to  the  death  penalty.  The  Friends,  and  perhaps 
the  Unitarians,  have  hitherto  stood  almost  alone  in  the  thorough- 
ness with  which  they  have  applied  the  teachings  of  Christ  to  the 
social  questions  of  the  day.  Now  the  bulk  of  the  religious  world 
in  England  is  following  their  example.  But  they  perceive  that 
the  maintenance  of  the  death  penalty  involves  them  in  a  horri- 
ble dilemma.  They,  at  any  rate,  cannot,  in  the  face  of  their 
Master's  teaching,  assent  to  the  proposition  that  all  murderers 
are  past  repentance.  When  the  alloted  interval  has  expired,  the 
convict  is  either  impenitent  or  penitent.  If  impenitent,  how 
awful  to  hurry  him  with  all  his  sins  upon  his  head  into  the  pres- 
ence of  that  God  who — more  patient  than  we — would  have  given 
hitn  a  longer  time  for  repentance !  If  sincerely  penitent,  forgiven 
by  God,  born  into  a  new  life,  what  but  the  clearest,  most  absolute 
proof  that  his  death  is  necessary  to  the  safety  of  society  can 
justify  us  in  forthwith  strangling  him? 

True,  says  the  Attorney-General  (Sir  J.  Holker)  in  a  recent 
debate,  it  is  a  terrible  thing  to  give  so  brief  a  time  for  repentance 
before  you  execute  the  sentence,  but  you  must  remember  the 
murderer  gave  his   victim   still  less.     Was  there  ever  a  more 


CAPITAL    PUNISHMENT  51 

shocking  application  of  the  discarded  principle,  dear  to  law- 
yers of  an  earlier  age,  "An  eye  for  an  eye,  and  a  tooth  for  a 
tooth"  ? 

Finally  the  development  of  medical  science  makes  capital 
punishment  seem  more  and  more  of  an  anachronism.  Out  of 
every  hundred  committals  for  murder  in  England  there  result 
about  forty-nine  convictions,  and  of  these  forty-nine  convicts 
about  fourteen  on  an  average  are  insane.  But  besides  this,  there 
can  be  little  doubt  that  many  have  been  hung  who  were  prac- 
tically not  responsible  for  their  actions.  In  fact,  the  whole  ques- 
tion of  moral  responsibility  is  surrounded  with  so  much  doubt 
and  difficulty  as  to  furnish  one  more  strong  argument  against 
taking  an  irrevocable  step.  The  tendency  of  medical  science 
at  the  present  day  is  more  and  more  to  refer  moral  delinquencies 
in  part  at  least  to  physical  causes,  and  it  may  often  happen 
that  a  convict's  reformation  is  begun  by  the  prison  doctor 
sooner  even  than  by  the  chaplain. 

•^  (6)  As  to  its  effect  upon  the  sources  of  evidence.  Under 
this  head  it  is  unnecessary  to  say  more  than  that  of  all  punish- 
ments that  of  death  is  necessarily  in  this  respect  the  worst.  Many 
a  convict  is  the  depositary  of  information  which  cannot  be  ob- 
tained from  any  other  quarter,  information  which,  as  in  the  case 
of  Habron,  may  result  in  the  undoing  of  a  grievous  wrong.  To 
kill  such  a  prisoner  is  to  finally  seal  against  ourselves  one  of 
the  most  important  sources  of  information. 

(7)  As  to  deterrent  effect.  I  have  left  this  to  the  last,  as 
being  the  most  important  test,  and  one  that  requires  the  fullest 
consideration.  I  feel  perfectly  certain  that  nine  out  of  every 
ten  believers  in  capital  punishment  base  their  devotion  solely  on 
the  ground  that  without  it  murders  would  increase  to  an  alarm- 
ing extent,  and  society  would  not  be  safe.  If  it  can  be  shown 
that  the  facts  of  the  case  do  not  warrant  these  apprehensions, 
eight  out  of  the  nine  would  in  all  probability  gladly  abandon 
their  position  and  join  the  movement  for  abolition. 

First  of  all,  however,  it  must  be  noticed  that  the  supporters 
of  the  death  penalty  stand  as  to  this  matter  of  deterrence  in  a 
very  different  position  from  that  occupied  by  its  opponents.    The 


52  SELECTED  ARTICLES 

other  arguments  used  in  its  favour  are  arguments  of  despair, 
sometimes  ingenious,  sometimes  not  even  that,  as  the  diligent 
student  of  Hansard  can  sadly  bear  witness.  The  one  plea  for 
the  gallows,  strong  in  its  plausibility,  is  this :— There  is  nothing 
so  dear  to  a  man  as  his  life;  therefore  the  threat  of  death 
must  be  the  most  terrible  and  the  most  efficacious. 

But  the  opponents  of  capital  punishment  do  not  hazard  their 
cause  on  the  issue  of  a  single  argument.  .  They  might  admit, 
if  facts  were  against  them,  that  the  death  penalty  is  the  great- 
est deterrent,  and  yet  urge  its  abolition  on  the  other  grounds 
I  have  already  alluded  to,  especially  on  the  ground  of  its  un- 
certainty and  irrevocability.  For,  after  all,  deterrence  is  not 
everything.  If  the  threat  of  hanging  deters  men  from  crime, 
surely  the  threat  of  burning  or  a  preliminary  course  of  torture 
would  be  still  more  efficacious.  Nay,  why  not  hand  over  the 
convict  to  the  vivisectors,  and  thus  at  one  stroke  safeguard 
society,  spare  dumb  animals,  and  further  the  advancement  of 
science?  The  only  logical  answer  that  could  be  given  to  such 
a  query  would  be,  that  we  should  in  the  long  run  lose  more 
than  we  should  gain.  It  would  be  like  Bastiat's  famous  illus- 
tration in  political  economy.  That  which  is  seen  would  be  a 
diminution  for  the  time  in  the  number  of  murders.  That  which 
is  not  seen  would  be  the  slow,  but  certain  deterioration  and 
brutalisation  of  society  by  the  use  of  such  means.  And  precisely 
the  same  reasoning  applies  to  hanging  without  torture.  As 
Mr.  John  Bright  well  said: — 

Whenever  you  hang  a  man  in  the  face  of  the  public  under 
the  circumstances  to  which  we  are  so  accustomed  in  this  country, 
if  you  do  in  the  sliglitest  degree  deter  from  crime  by  the  shocl<- 
ing  ratuie  of  the  punishment,  I  will  undertake  to  say  that  you 
by  so  much — nay.  by  much  more — weaken  that  other  and  greater 
security  which  arises  from  the  reverence  with  which  human  life 
is  regarded. 

Another  point  worth  remembering  is  that  it  is  quite  possi- 
ble to  exaggerate  the  value  men — especially  men  of  the  class  from 
whom  most  murderers  come — set  upon  life,  their  own  or  their 
neighbour's.  The  trivial  grounds  upon  which  men,  women, 
and  even  children,  will  commit  suicide  is  a  proof  of  this,  which 
the  benevolent  verdict  "of  unsound  mind"  fails  to  impeach. 


CAPITAL    PUNISHMENT  53 

Another  proof  affecting  a  higher  class  in  the  community  is 
found  in  the  alacrity  with  which  thousands  of  men,  under  the 
stimulus  of  a  shilling  a  day  and  a  brass  band,  will  lay  down  their 
lives  in  a  quarrel  as  to  the  merits  of  which  they  know  little 
and  care  less. 

But  the  great  fallacy  which  underlies  the  plausible  argu- 
ment that  the  fear  of  death  must  deter  is  this — it  assumes  that 
the  fear  operates  on  the  murderer's  mind  at  a  particular  moment, 
at  the  moment,  namely,  when  he  is  committing  the  crime.  But 
this  is  an  extravagant  assumption,  contradicted  by  the  facts  I 
am  about  to  refer  to.  It  may  very  well  be  that,  when  brought 
to  bay  in  a  court  of  justice,  confronted  with  all  the  solemn 
paraphernalia  of  the  law,  the  passion  of  hatred,  lust,  or  greed 
long  since  extinguished,  it  may  very  well  be  that  then  death 
looms  before  the  unhappy  wretch  as  the  most  terrible  of  possi- 
bilities. But  that  is  perfectly  consistent  with  his  having  com- 
mitted the  crime  uninfluenced  by  the  slightest  thought  of  the 
penalty. 

We  are  not,  however,  left  to  mere  opinion  on  this  question 
of  deterrence.  We  have  fortunately  a  considerable  body  of 
evidence  to  guide  us  in  forming  our  judgment,  and  this  evi- 
dence I  will  now  briefly,  and  I  hope  impartially,  summarise. 

In  several  foreign  countries  capital  punishment  has  been 
either  expressly  abolished  or  practically  dispensed  with.  The  re- 
sults of  these  experiments  ought,  one  would  think,  to  be  decisive. 
Taking  at  first  the  cases  of  entire  abolition  we  find  as  follows : — 

HoLL.\XD. — Capital  punishment  abolished  September,  1870  (as 
a  matter  of  fact  there  has  been  no  execution  since  1860).  The 
statistics  of  murder  were  as  follows:  1861-9,  19  murders;  1871-9, 
17  murders;  and  this  notwithstanding  an  increase  of  population. 

Finland. — There  has  been  no  execution  since  1824.  The  Judge 
of  the  Couit  of  Appeal  states:  "The  security  of  person  and 
prorerty  has  not  been  in  the  least  diminished  by  the  suspension 
of  capital    punishment.     Murders    are    extremely    rare." 

SwrrzKULAND. — In  1874  capital  punishment  was  abolished  by  the 
Federal  Council.  In  187^  Cantons  were  allowed  to  choose  for 
themselves,  and  two  or  three  have  elected  to  reinstate  the  death 
penalty. 

Bklgit-m. — No  execution  since  1863.  In  the  10  years  before  1863, 
921   murders;   in  the  10  years  after  1863,   703  murders. 

I'RissiA. — In  decade  1869-78,  484  persons  sentenced  to  death, 
only  one  execution   (Hodel). 

PouTroAi.. — Capital   punishment  abolished. 

Ror. MANIA. — Capital    punishment    abolished. 


54  SELECTED  ARTICLES 


TuscAxy. — No  execution   for  fifty  years. 

Russia. — Capital  punisliment  only  retain^  for  treason  and 
military  insubordination.  J|/^ 

America. — Michigan,  capital  punishmelH^bolished  in  1847; 
Rhode   Island.    1852;    Wisconsin,    1853;   ^oig^JWIfllZ;    Maine,   1876. 

In  Michigan  the  statistics  show^that  sn'fce  1847  murders  have 
decreased,  relatively  to  the  population,  57  per  cent.  As  to  Wis- 
consin, Governor  Washburne  writes  in  1873 : — 

It  is  twenty  years  since  the  abolition  of  capital  punishment. 
No  state  can  show  greater  freedom  from  homicidal  crime.  With 
a  population  representing  almost  every  nationality,  statistics  show 
that  Clime  instead  of  increasing  with  the  growth  of  the  state  has 
actually  diminished. 

Of  Iowa,  Senator  Jessup  writes  in  1876: — 

Murder  in  the  first  degree  has  not  increased/  but  has  for  four 
years  decreased.  Previous  to  the  repeal  of  the  old  law  there  was 
one  murder  for  every  800,000  people.  For  the  four  years  since 
abolition  there  has  been  one  in  every  1,200,000.  There  is  more 
lynch  law  where  the  gallows  is  retained. 

This  evidence  might  easily  be  multiplied,  and,  so  far  as  I 
know,  it  all  points  in  one  direction. 

Next  let  us  take  the  cases  of  partial  discontinuance. 

Austria. — In   decade   1870-9,   806   death  sentences,   16  executions. 

SwKDEN. — From  1869-78,  32  death  sentences,  3  executions. 

Norway. — From    1869-78,    14    death   sentences,    3    executions. 

America. — In  Illinois,  Tennessee,  Indiana,  and  Oregon,  capital 
punisliment  is  practically  discontinued,  and  in  Louisiana  and  Min- 
nesota  almost    so. 

Of  all  these  cases  Switzerland  is  the  only  one  that  even  a 
perverse  ingenuity  can  use  in  favour  of  the  deterrent  effect 
of  capital  punishment.  Even  there,  however,  the  majority  of 
the  Cantons  dispense  with  the  death  penalty,  and  that  in  face 
of  the  fact  that  no  efficient  substitute  has  been  provided.  But 
I  am  not  concerned  to  haggle  over  every  single  item  of  evidence. 
In  the  face  of  the  grievous  disadvantages  which  everyone  must 
admit  are  inseparably 'connected  with  this  punishment,  it  surely 
lies  upon  its  advocates  to  prove  by  overwhelming  evidence 
that  society  is  nft  safe  without  it.  Instead  of  this,  the  evidence 
points  in  an  exactly  opposite  direction.  Society  seems  safer 
and  human  life  more  secure  where  reverence  for  it  is  taught 
by  precept  and  not  violated  in  practice.  It  may  be  true  some- 
times, as  Canning  said,  that  nothing  is  so  fallacious  as  figures 
except  facts ;  but  it  is  a  dangerous  thing  to  assume  that  because 
facts  and  figures  both  point  to  a  certain  conclusion,  therefore 


CAPITAL    PUNISHMENT  55 

that  conclusion  is  wrong.     Yet  this,  or  something  very  like  it, 
i£  the  position  into  tAkh  the  advocates  of  the  death  penalty 


ilUch 
Ymaar 


are  driven. 

There  are  several  Spim^r  points  which  I  cannot  discuss  within 
the  necessary  limits  of  an  article  such  as  this.  The  irregular  and 
practically  secret  appeal  to  the  Home  Secretary;  perpetual  im- 
prisonment as  a  substitute  for  death ;  the  question  of  how  to 
deal  with  attacks  on  warders  where  such  imprisonment  is  re- 
sorted to ;  these  and  other  kindred  matters  are  subordinate  to 
the  main  question.  That  question  as  it  presents  itself  to  me 
•  is  shortly  this.  -If  other  countries  and  our  own  kin  across  the  sea 
can  dispense  with  the  awful  penalty,  why  not  we?  Is  there 
still  any  grain  of  truth  left  in  Mirabeau's  reproach,  or  are  Eng- 
lishmen so  intractable  and  ferocious  that  they  must  be  kept  in 
with  a  more  galling  bit  and  bridle  than  suffices  for  their  neigh- 
bours ? 

It  is  sometimes  said  that  the  judges  and  the  Church  are  both 
in  favour  of  the  gallows.  As  to  the  former,  Burke's  fine  say- 
ing is  as  true  now  as  it  was  in  the  days  of  Thurlow. 

The  law  is  a  science  which  does  more  to  quiclcen  and  invigorate 
the  understanding  than  all  the  other  kinds  of  learning  put  together; 
but  it  is  not  apt,  except  in  persons  very  happily  born,  to  open  and 
to  liberalise  the  mind  exactly  in  the  same  proportion. 

Lord  Ellenborough  predicted  chaos  if  men  were  not  to  be 
hanged  for  petty  larceny,  and  Lord  Eldo.n  heartily  agreed.  As 
to  the  Church,  if  the  pews  lead  the  way,  the  pulpit,  as  it  has 
often  done  before,  will  gird  up  its  loins  and  follow  meekly  afar 
off. 

Sir  William  Harcourt,  speaking  as  a  member  of  the  Govern- 
ment, in  a  recent  debate,  refused  to  support  the  bill  for  the  Abo- 
lition of  Capital  Punishment  on  the  ground  that,  though  he 
personally  was  ripe  for  the  change,  English  public  opinion  was 
not.  If  this  be  so,  it  is  surely  the  duty  of  those  who  look  upon 
the  gallows  as  an  outrage  on  justice,  humanity,  and  religion  to 
do  their  best  to  arouse  public  interest  and  ripen  public  opinion. 

Lowell's  brave  words  are  singularly  apposite : — 
New    occasions    teach    new    duties,    time    makes    ancient    good    un- 
couth, 
Thev  must  upward  still,   and  onward,   who  would   keep  abreast  of 
truth. 


56  SELECTED  ARTICLES 

Lo,  before  us  gleam  her  camp-fires,  we  ourselves  must  pilgrims  be- 
Launch    our    Mayflower   and    steer    boldly    through    the    desperate 

wmter's   sea, 
Nor  attempt  the  future's  portal  with   the  past's  hlood-rusted  key. 


Friends'  Intelligencer,  sup.  October   6,  1906. 

Shall  the  State  Kill  ?     Charles  Burleigh  Galbreath. 

\  Sixty  years  ago  the  distinguished  reformer,  whose  name  I 
am  unworthy^o  bear,  in  his  "Thoughts  on  the  Death  Penalty," 
declared : 

"Among  the  most  important  subjects  now  claiming  public 
attention,  is  the  duty  of  society  towards  its  offending  members. 
The  world  has  enjoyed,  not  altogether  in  vain,  for  eighteen  cen- 
turies the  precepts  and  example  of  the  great  Reformer,  and  is 
learning,  slowly  indeed,  but  it  is  to  be  hoped  surely,  the  heaven- 
taught  lesson  that  it  is  better  to  save  life  than  to  destroy,  that 
it  is  more  worthy  a  civilized  and  Christian  community  to  re- 
form than  to  exterminate  transgressors." 

Such  was  the  language  of  Burleigh  in  the  early  days  of  op- 
position to  capital  punishment.  Such  is  the  thought  of  sober- 
minded  men  in  these  later  years  that  have  ushered  in  the  renais- 
sance of  humanitarian  effort  and  rational  reform.  It  is  the 
old  problem  revived  again  on  the  vantage  ground  of  a  nev^  cen- 
tury. The  theories  of  those  early  days  are  to  be  tested  in  a 
measure  by  the  experience  of  intervening  years. 

An  eminent  divine  has  averred  that  the  basis  of  argument 
for  the  death  penalty  is  found  in  the  familiar  Scriptural  dec- 
laration, "Whoso  sheddeth  man's  blood,  by  man  shall  his  blood 
be  shed."  In  extended  reference  to  divine  authority,  he  adds : 
"This  is  the  secret  of  some  of  the  most  terrible  tragedies  of  ret- 
ribution by  the  Divine  Vengeance,  otherwise  so  unaccountable, 
but   as   startling   and   warning   for   nations   as    for   individuals." 

Under  this  ancient  code,  invoked  as  the  source  of  authority, 
the  death  penalty  was  prescribed  not  only  for  murder  and  man- 
slaughter, but  also  for  idolatry,  blasphemy,  licentiousness,  dis- 
obedience of  the  magistrate,  Sabbath  breaking,  and  about  thirty 
other  offenses.     Under  the   rectifying  hand   of   time  this  code 


CAPITAL    PUNISHMENT  S7 

of  blood  is  fading  away.  From  the  statutes  of  some  of  our 
progressive  states  it  has  been  obliterated  forever.  Others  re- 
tain it  only  for  premeditated  murder.  Still  others  hold  to  the 
form,  but  veto  the  penalty.  Against  this  dread  decree,  in  the 
morning  light  of  the  twentieth  century,  flash  the  inspired  words 
of  our  Whittier,  "All  revenge  is  crime."  Retribution  yields  to 
rational  justice.  Hatred  foregoes  its  hideous  rite,  for  the  ref- 
ormation of  the  individual  and  the  safety  of  society. 

Before  entering  upon  the  formal  consideration  of  this  theme, 
it  is  interesting  and  a  little  disappointing  to  note  to  what  ex- 
tent those  who  have  written  on  the  subject  have  been  moved 
by  prejudice.  In  the  consideration  of  few  other  questions,  per- 
haps, has  there  been  a  more  palpable  invention  of  premises  to 
warrant  preconceived  conclusions.  A  case  in  point  is  found  in 
the  argument  of  Dr.  J.  M.  Buckley,  editor  of  The  New  York 
Christian-  Advocate.  He  quotes  a  letter  from  Dr.  James  T. 
Edwards,  a  former  member  of  the  Senate  of  Rhode  Island,  a 
state  that  has  abolished  capital  punishment. 

"Murder,"  writes  Edwards,  "has  disproportionately  increased 
since  abolition,  and  in  fact  it  reduces  itself  to  this :  We  neither 
hang  nor  imprison  for  life  for  murder  in  the  first  degree.  The 
criminals  are  pardoned,  and  I  think  no  man  'imprisoned  for  life' 
has  ever  died  in  our  prison." 

This  statement,  if  true,  would  not  necessarily  justify  the  res- 
toration of  the  death  penalty;  but  the  fact  is  that  Senator  Ed- 
wards was  mistaken.  Had  he  taken  the  trouble  to  examine 
the  records  of  his  state,  he  would  have  found  that  the  very 
first  man  sentenced  "for  life"  to  the  state  prison  died  there. 
His  commitment  bears  date  of  November  i6th,  1838,  and  his 
demise  occurred  April  3rd,  1849.  Nor  is  that  all.  Had  he  ex- 
amined the  records  further,  he  would  have  found  that  others 
committed  since  capital  punishment  was  abolished  have  died  in 
prison.  The  senator  did  not  examine  the  records.  He  learned, 
probably,  that  life  prisoners  had  been  pardoned.  He  waxed 
indignant  and  eloquent.  He  longed  for  a  return  to  the  halcyon 
days  of  the  gallows.  He  simply  did  what  others  have  been 
tempted  to  do.     Regardless  of  facts,  he  reached  the  conclusion 


S8  SELECTED  ARTICLES 

"dear  to  his  heart."  He  communicated  his  guess  to  the  Rev. 
J.  M.  Buckley,  who  innocently  published  to  the  world  this  bit 
of  misinformation  which  has  been  bandied  about  in  debating 
halls  and  legislative  assemblies  for  the  past  fifteen  years. 

Other  instances  of  similar  character  appear  in  the  literature 
on  this  subject.  To  these  we  may  have  occasion  to  allude  as 
we  proceed. 

The  consideration  of  a  question  so  grave  should  not  be  ap- 
proached in  the  spirit  of  special  pleading.  The  evidence  should 
be  weighed  and  the  arguments  marshaled  with  the  judicial  poise 
and  the  logical  acumen  of  Charles  C.  Burleigh.  Inherited  pre- 
dilections toward  the  lex  talionis,  the  decree  of  vengeance,  the 
fang  and  talon  of  animal  instinct,  should  be  set  aside.  Equally 
unworthy  a  ^lace  in  this  discussion  are  the  morbid  sympathy 
and  maudlin  sentimentality  that  would  exalt  guilt  and  bend 
an  aureole  about  the  brow  of  crime.  Our  concern  for  the 
inmates  of  dungeons  and  the  victims  of  the  gallows  should  not 
Wind  us  to  the  claims  of  thousands  tvho,  against  an  adverse 
star  and  beset  with  temptation,  walks  erect  to  the  end.  When 
society  and  the  state  attain  more  nearly  to  the  ideals  of  Christ, 
proclaimed  on  the  Mount,  the  occasions  for  punishment  shall 
pass  away,  the  instruments  of  torture  and  de'ath  shall  crumble 
to  dust  and  prison  cells  shall  be  tenantless.  Until  that  millen- 
nium is  reached,  however,  if  the  two  be  incompatible,  the  safety 
of  the  many  must  outweigh  our  sympathy  for  the  few. 

Under  the  milder  sway  of  an  era  that  magnifies  the  humani- 
tarian spirit  of  the  new  dispensation,  it  is  a  little  singular  that 
eminent  theologians  should  appeal  to  the  Old  Testament  in 
support  of  the  death  penalty.  They  would  not  enforce  it  for 
the  thirty  odd  other  ofifenses  specified  in  Holy  Writ.  They 
would  retain  it  for  premeditated  murder  only.  Dr.  Buckley  has 
profound  reverence  for  this  mode  of  punishment.  Life  im- 
prisonment in  Rhode  Island,  at  the  time  of  the  publication  of 
his  famous  argument,  was  too  mild  and  uncertain  ;  in  Michigan, 
it  was  too  severe  and  cruel,  but  death  by  the  gallows,  or  any 
other  route,  was  just  the  thing.  The  Doctor  would  now  proba- 
bly register  a  different  opinion  in   regard  to  the  treatment  ac- 


CAPITAL    PUNISHMENT  <v    59 

corded  to  convicts  in  the  state  prison  of  Michigan,  but  he 
would  still  proclaim  the  death  penalty  divine,  and  write,  as 
of  old,  the  stamp  of  his  approval  in  italics.  There  are  eminent 
ministers  of  the  gospel,  however,  who  take  the  opposite  view 
and  maintain  that  the  death  penalty  is  without  Scriptural  sanc- 
tion. Certain  it  is  that  the  first  murderer  and  others  named  in 
the  Bible  were  not  put  to  death  for  their  crimes.  We  may  leave 
this  controversy,  however,  to  the  theologians,  who  are  best 
qualified  to  cope  with  it.  There  was,  as  we  know,  an  ancient 
code  that  demanded  "an  eye  for  an  eye,  and  a  tooth  for  a  tooth," 
but  when  Christ  paid  the  penalty  and  cried  aloud  on  the  cross, 
"It  is  finished,"  he  ushered  in  the  era  of  love  and  mercy  and 
hope,  and  struck  forever  from  the  ancient  statutes  the  code 
of   blood  and  retribution. 

It  is  gradually  dawning  upon  the  public  that  the  welfare  of 
the  person  convicted  is  entitled  to  consideration.  The  refor- 
mation of  the  offending  member  of  society  is  now  recognized 
as  one  of  the  legitimate  ends  of  punishment.  It  is  therefore 
worth  while  to  consider  the  death  penalty  with  reference  to 
the  interests  of  the  unwilling  candidate  for  a  premature  exit 
to  eternity.  Is  he  worth  saving  from  the  gallows?  Is  refor- 
mation possible  for  such  as  he? 

It  is  the  opinion  of  Dr.  McGilvary,  an  eminent  professor 
of  Cornell  University,  that  in  some  instances  it  is  best  to  re- 
^^Norm  a  man  by  killing  him.  "In  the  extreme  case  of  capital 
punishment,"  says  he,  "it  seems  to  be  too  much  of  a  heartless 
paradox  to  say  that  the  execution  is  for  the  criminal's  own 
good,  or  in  order  to  make  him  good.  But  I  think  without  the 
flippancy  which  expresses  itself  in  the  proverb,  'only  dead  In- 
dians are  good  Indians,'  we  can  truly  and  seriously  maintain 
that  we  kill  some  persons  to  make  them  good." 

This  method  of  reforyhation  has  its  advocates  among  those 
who  regard  the  question  from  the  religious  point  of  view.  Their 
argument  is  briefly  sumiftied  up  by  Eben  Bumstead,  of  Boston, 
in  a  recent  statement  :\l  "Life  sentence  seals  criminals  in  sin, 
while  imminence  of  deatn  hastens  repentance  and  the  acceptance 
of  the  sacrifice  of  Christ." 


6o  SELECTED  ARTICLES 

Briefly  put,  Dr.  McGilvary  would  kill  some  persons  to  make 
them  good,  and  Eben  Bumstead,  the  agent  of  Bostonian  civic 
righteousness,  would  make  some  persons  good  to  kill  them. 

The  theory  of  Bumstead  and  others  of  his  way  of  thinking 
seems  to  be  that  the  victim  is  to  be  so  thoroughly  frightened 
by  the  swift  and  certain  approach  of  the  king  of  terrors  that 
he  will  become  a  saint.  While  he  is  in  this  happy  condition 
and  before  he  has  time  to  "back-slide,"  he  is  to  be  suddenly 
choked  or  electrocuted  into  heaven,  there  to  enjoy  bliss  ages 
without  end.  Fortunate  consummation !  How  the  man  found 
guilty  only  of  murder  in  the  second  degree  and  sentenced  to 
imprisonment  for  life  must  envy  such  an  one!  How  sad  the 
lot  of  all  other  prisoners  and  many  not  prisoners  on  this  mun- 
dane sphere,  compared  with  the  fortune  of  the  man  frightened 
into  sanctity  and  transported  by  the  divine  death  penalty  into 
an  eternity  of  joy  and  song !  What  an  incentive  to  the  de- 
stroying angel  or  some  of  his  agents  to  swoop  down  upon  a 
community  after  a  successful  religious  revival  and  send  the  re- 
deemed post-haste  to  Paradise !  Such  an  argument  is  too  silly 
to  be  ludicrous. 

There  was  a  time  when  the  lash  and  the  rack  and  the  fagot 
were  the  instruments  used  to  drive  unwilling  souls  to  the  arms 
of  the  Prince  of  Peace.  That  era  has  fled  the  earth  forever. 
Bigotry  and  intolerance  are  not  wholly  dead,  but  never  again 
shall  they  seize  the  reins  of  state  and  wield  temporal  power 
to  celebrate  their  bloody  rites.  And  yet  the  fanatics  of  old, 
who  used  the  instruments  of  torture  to  turn  souls  to  God,  had 
at  least  a  rational  formula  for  their  unrighteous  work.  When 
the  fagots  were  about  to  be  lighted  they  called  upon  their 
victim  to  repent.  H  he  did  this,  he  was  usually  restored  to 
liberty.  The  theory  was  that  if  he  was  prepared  to  die,  he  was 
fit  to  Mve.yrhe  proposition  of  those  who  point  to  the  death 
— penalty  "a  sa  reformatory  agency  is  in  substance  this:  Lead  the 
prisoner  to  repentance  by  the  imminence  of  the  gallows,  and 
when  he  has  repented  kill  him,  kill  him  quick  and  send  him 
to  heaven!  H  he  does  not  repent,  kill  him  anyway  and  send 
him  to  the  other  place! 


CAPITAL    PUNISHMENT  ^6?) 

There  are  others  who  contend  that  the  life  of  a  man  who  has 
committed  murder  is  not  worth  saving.  He  has  blasted  his  fu- 
ture and  it  is  a  merciful  service  to  remove  him  from  this  world 
as  promptly  and  painlessly  as  possible.  While  this  view  may 
not  be  pleasing  to  us,  it  is  at  least  entitled  to  respectful  con- 
sideration. 

But  the  prisoner  may  not  be  guilty.  It  is  possible  in  these 
times  that  justice  may  miscarry  and  the  innocent  be  convicted. 
There  can  be  no  doubt  that  this  was  true  long  years  ago  when 
the  popular  prejudice  against  the  accused  was  so  strong  that 
it  virtually  shifted  to  his  shoulders  the  burden  of  proof.  That 
such  cases  are  comparatively  rare  at  present  is  equally  true.  But 
instances  are  not  wanting  to  show  that  juries  and  judges  are 
still  fallible. 

Maud   Ballington   Booth,   writing  under  date   of    September, 
1903,  gives  details  of  two  interesting  cases.     "A  man  was  sen- 
tenced to  life  imprisonment  for  murder  and  served  sixteen  and 
a  half  years.     Most   of   the   evidence  had  been   purely  circum- 
stantial and  he  was  convicted  mainly  on  the  testimony  of  one 
witness.     He  was  saved  from  the  gallows  only  by  the  earnest 
efforts  of  those  who  had  known  of  his  previous  good  character. 
Last   \yinter   the   woman   who   had   borne   witness   against   him 
came    to    what    she   believed    was    her    death-bed,    and,    sending 
for  the  priest,  confessed  that  she  had  committed  perjury."     The 
matter  was  brought  to  the  attention  of  the  governor,  and  the-x 
man     at    once     liberated.      He     still    lives.      The     state    took/ 
sixteen  and  one-half  years  of  his  liberty,  but  did  not  shed  his^ 
innocent  blood !  ' 

"At  the  present  time,"  continues  Mrs.  Booth,  "I  know  a 
man  who  has  served  nine  years  and  is  still  in  prison,  where  he 
has  been  visited  by  the  boy  whom  he  was  supposed  to  have 
murdered.  His  Victim,'  a  mere  child,  disappeared,  and  this 
man,  a  tramp,  who  was  overtaken  in  the  forest  by  a  search 
party,  was  held  responsible.  Some  years  after  his  conviction 
to  state  prison,  the  boy  returned  from  what  proved  to  be  a 
runaway  adventure,  alive  and  well.  It  is  sometimes  very  hard 
work  to  make  the  wheels  of  justice  turn  backward  for  those 


^ 


SELECTED  ARTICLES 


once  confined  within  prison  walls,  so  the  man,  who  was  poor 
and  friendless,  is  in  prison  still." 

The  fact  that  in  our  day  justice  may  thus  miscarry  must 
give  men  of  conscience  pause  before  they  seek  remedial  ven- 
geance in  the  death  penalty. 

But  is  the  life  of  the  man  who  has  actually  committed  this 
crime  of  murder  worth  saving?  Has  hei  by  violating  the  great 
law  of  God  and  man,  placed  himself  beyond  the  reach  of  re- 
form? Has  he  by  this  dread  act  renounced  for  all  time  the 
ties  of  brotherhood  and  become  worse  than  the  wild  beast? 

Rev.  Cotten,  for  twelve  years  chaplain  of  Newgate,  England, 
is  said  to  have  declared  that  he  did  not  remember  one  instance 
of  conversion  and  reformation  "except  in  prisoners  who  were 
executed."  A  glowing  testimonial,  surely,  to  the  divine  efficacy 
of  capital  punishment. 

The  governor  of  the  Portland  convict  prison  in  England  bears 
this  testimony :  "I  have  only  known  two  cases  of  real  refor- 
mation in  thirty-five  years."  It  would  seem  here  that  not  even 
the  death  penalty  had  proven  efficacious,  except  possibly  in  the 
two  exceptional  cases,  in  regard  to  which  we  are  left  in  the 
dark.  The  two  prisoners  may  have  been  executed  before  they 
had  time  to  get  bad. 

Fortunately,  the  testimony  is  not  all-  to  similar  effect.  In- 
differently equippedx  and  managed  as  are  many  of  our  Ameri- 
can prisons  to-day,  it  is  safe  to  say  that  such  discouragement 
would  not  be  found  in  the  reports  of  any  one  of  them.  In 
spite  of  all  that  has  been  said  by  the  critics,  and  much  of  it 
justly,  the  fact  remains  that  great  improvements  in  recent  years 
have  been  made  in  prison  administration,  and  some  of  our  large 
penitentiaries  are  becoming  veritable  reformatories.  While  some 
prisoners  repeat  offenses  against  the  law,  violate  the  terms  of 
their  pardon,  and  are  returned  a  second  or  third  time,  these 
cases  are  the  exception  and  not  the  rule.  I  have  recently  been 
in  correspondence  with  officials  in  all  the  states  in  which  capi- 
tal punishment  has  been  abolished,  and  all  report  specific  in- 
stances of  Hfe  prisoners  pardoned  who  are  living  upright,  use- 
ful lives. 


CAPITAL    PUNISHMENT 


fC) 


The  warden  of  the  Wisconsin  state  prison,  in  a  letter  dated 
August  i6,  1906,  says: 

"There  have  been  received  in  this  institution  263  prisoners 
under  life  sentence.  Of  these  sixty-five  have  been  discharged 
by  pardon.  Our  records  show  but  one  case  where  the  prisoner 
pardoned  returned  to  crime." 

The  prisoner  in  this  one  instance,  as  the  warden  proceeds 
to  explain,  afterward  committed  forgery,  for  which  he  was 
sentenced  to  prison.  Continuing,  the  warden  makes  this  state- 
ment, which  should  be  published  widely  and  pondered  well : 

"My  experience  has  been  that  the  life  prisoners  are  of  a 
better  class  than  those  that  are  committed  for  burglary,  larceny, 
etc.,  their  crime,  as  a  rule,  being  one  committed  in  a  moment 
of  passion  that  does  not  reckon  with  the  consequences  of  their 
deed." 

Similar  testimony  could  doubtless  be  collected  from  states 
that  still  impose  the  death  penalty.  Ohio,  which  claims  to  be 
law-abiding  and  fairly  progressive  in  dealing  with  crime  and 
criminals,  could  point  to  a  number  of  interesting  cases  of  re- 
demption. A  sturdy  young  German  was  sentenced  to  be  hanged. 
The  bearing  of  the  man  and  his  behavior  pending  the  exe- 
cution made  such  a  favorable  impression  that  his  sentence  was 
commuted  to  imprisonment  for  life.  Later  he  was  pardoned, 
and  to-day  he  is  a  sober,  industrious,  useful  citizen.  Some  years 
ago  a  young  man,  a  painter  by  trade,  committed  murder  in 
my  native  county,  and  was  sentenced  to  death.  In  this  county 
there  are  many  descendants  of  pioneer  Quaker  settlers,  and 
convictions  for  murder  in  the  first  degree  are  few.  The  fact 
that  this  man  was  found  guilty  of  a  capital  crime  is  proof  that 
the  evidence  against  him  was  of  the  most  direct  and  positive 
character.  The  time  of  execution  was  postponed.  The  prisoner 
was  converted  and  became  a  religious  enthusiast.  This  was 
not  a  signal  to  the  state  to  rush  him  to  execution.  The  sen- 
tence was  changed  to  life  imprisonment.  His  continued  firm- 
ness in  the  faith  inspired  confidence  in  his  sincerity.  He  was 
finally  pardoned  and  to-day,  by  his  blameless  life  and  the  zeal 
with  which  he  holds  to  the  path  of  rectitude,  he  is  demonstrat- 


V 


64  SELECTED  ARTICLES 

ing  not  only  that  he  is  prepared  to  die,  but  more— that  he   is 
fit  to  live  and  show  to  the  world  that  not  in  vain, 

Hope's  sunshine  lingers  on  the  prison  wall. 

So  much  for  the  reformation  of  the  individual.  But  the  wel- 
fare of  the  convicted  criminal,  important  though  it  be,  is  not 
the  paramount  consideration  in  dealing  with  this  great  problem. 
Sympathy  for  the  prisoner  and  interest  'in  his  future  must  not 
jeopardize  the  safety  of  society.  Remorse  may  wring  the  soul 
of  the  criminal.  Repentance  for  his  rash  act  may  make  him 
spotless  in  the  sight  of  God.  His  plea  for  an  opportunity  to 
atone  for  the  past  with  a  righteous  future  may  move  hearts 
of  stone.  And  yet,  he  must  be  slain  ignominiously  and  without 
mercy — if  the  safety  of  society  demands  it. 

It  is  claimed  that  the  death  penalty  will  deter  others  from 
committing  crime ;  that  the  example  of  a  legal  execution  im- 
poses a  salutary  restraint.  If  this  be  true,  why  was  it  abolished 
for  minor  offenses?  Why  are  all  its  advocates  and  apologists 
agreed  that  it  should  apply  to  only  one  or  two  of  the  one  hun- 
dred and  sixty  so-called  capital  crimes  enumerated  in  the  days 
of  Sir  William  Blackstone,  including  premeditated  murder,  and 
descending  through  the  scale  by  fine  graduations  to  "breaking 
down  the  head  of  a  fish-pond,  whereby  fish  may  be  lost."  All 
hail  the  good  old  times  when  life  was  cheap  and  fish  were  fully 
appreciated.  Why  was  the  restraining  death  penalty  abandoned 
for  these  minor  offenses? 

Its  advocates  tell  us  that  the  punishment  was  not  propor- 
tionate to  the  offense ;  that  it  offended  the  sense  of  public  jus- 
tice; that  it  became  inoperative  because  of  its  severity.  The 
principle  for  which  they  contend  is  "an  eye  for  an  eye,  and  a 
tooth  for  a  tooth,"  not  an  eye  for  a  tooth  or  a  tooth  for  an 
eye. 

But  how  extensively  do  we  apply  this  principle  in  our  puni- 
tive system?  If  two  men  are  involved  in  a  brawl  and  one 
lacerates  the  arm  of  the  other,  does  the  state  settle  the  account 
by  lacerating  the  arm  of  the  offender?  If  one  man  bruises  the 
face  of  another  with  his  fist,  are  the  ends  of  justice  satisfied 
by  placing  the  culprit  in  a  machine  and  beating  his  face  to  a 
like  degree  of  blueness   and  bloodiness?     It  would  be  impos- 


CAPITAL    PUNISHMENT  65 


sible  to  apply  this  principle  for  all  misdemeanors,  and  if  it  were 
applied  where  possible  the  "sense  of  public  justice"  would  be 
50  outraged  that  our  tribunals  would  be  broken  down  and  the' 
instruments  of  blood  and  torture  would  be  committed  to  the 
flames. 

But  has  this  "God-made"  death  penalty,  as  a  devout  author 
seriously  calls  it,  neither  too  mild  nor  too  severe,  but  just  right, 
as  Dr.  Buckley  declares — has  this  penalty  a  special  virtue  for 
the  crime  of  murder?     Does  it  deter? 

The  average  man,  in  normal  condition,  perhaps,  inclines  to 
the  opinion  that  it  does,  for  such  a  man  instinctively  values 
life  above  all  things  else.  But  when  a  man  commits  murder 
his  condition  is  abnormal,  and  rarely,  if  ever,  do  penalties  deter. 
Sometimes,  he  promptly  turns  upon  himself  the  instrument  of 
destruction.  Often  he  surrenders  himself  to  the  officer  of  the 
law,  expecting  to  pay  the  extreme  penalty.  A  venerable  ex- 
warden  of  the  Ohio  penitentiary,  under  whose  administration 
of  eight  years  a  number  of  prisoners  were  executed,  recently 
wrote  a  letter  ;favoring  the  abolition  of  capital  punishment, 
and  expressing  his  firm  conviction,  in  almost  the  words  of 
Warden  Town,  of  Wisconsin,  that,  as  a  rule,  murder  is  com- 
mitted "in  a  moment  of  passion  that  does  not  reckon  with  the 
consequences  of  the  deed." 

These  opinions,  the  results  of  careful  observation  and  long 
experience,  have  a  logical  basis  and  are  entitled  to  respectful 
consideration.  But  such  testimony  is  not  the  strongest  that  can 
be  offered  in  support  of  their  view.  The  experience  of  states, 
as  recorded  in  statistics,  may  be  a  dry  theme,  but  it  points  un- 
erringly to  one  conclusion.  Four  states,  Rhode  Island,  Michi- 
gan, Wisconsin,  and  Maine,  have  abolished  capital  punishment. 
The  first  three  have  each  been  without  it  for  over  half  a  cen- 
tury. In  none  of  the  four  is  there  any  disposition  to  return 
to  the  death  penalty. 

Michigan  was  the  pioneer  state  to  abolish  the  penalty.  The 
act  was  passed  in  1846.  For  the  last  twenty-five  years  she  has 
had  fewer  homicides  proportionately  than  Wisconsin  and  Iowa, 
and,  for  my  state,  I  regret  to  say,  less  than  one-third  as  many 
as  Ohio. 


66  SELECTED  ARTICLES 

Rhode  Island,  which  followed  the  example  of  Michigan  in 
1852,  in  spite  of  her  dense  population,  occasionally  pardons  a 
life  prisoner,  and  still  has  a  rate  of  crime,  in  proportion  to  pop- 
ulation, about  the  same  as  that  of  Michigan. 

Wisconsin  comes  next  on  the  roll  in  point  of  time  and  ex- 
cellence of  record.  She  abolished  the  death  penalty  in  1853  and 
has  a  lower  rate  of  crime  than  Iowa  or  Ohio. 

Maine  has  had  an  interesting  experience.  Prior  to  1876  the 
death  penalty  was  partially  abolished.  In  that  year  it  was  abol- 
ished altogether.  In  1883  it  was  re-established.  Did  the  dread 
penalty  stay  the  up-lifted  homicidal  hand?  No.  The  very  next 
year  the  number  of  homicides  rose  from  four  to  thirteen.  The 
two  years  following  showed  eight  and  five  cases  re- 
spectively. The  governor  declared  in  his  message  that 
the  re-enactment  of  the  death  penalty  had  failed  utterly  as  a 
restraining  influence.  In  1887  it  was  again  abolished,  in  the  lan- 
guage of  an  official  of  that  state,  "never  to  be  enacted  again." 
The  number  of  homicides  for  the  three  years  preceding  the 
enactment  of  the  death  penalty  was  eighteen.  The  number  for 
three  years  under  the  death  penalty  was  twenty-six.  For  1887 
and  1888  there  are  no  reports.  For  the  three  years  following 
after  the  abolition  of  the  death  penalty  the  number  dropped 
again  to  eighteen.  Nor  is  this  all.  Statistics  are  available  from 
that  state  covering  a  period  from  i860  to  1904,  with  the  ex- 
ception of  the  years  1887  and  1888,  making  in  all  forty-three 
years.  In  twenty  years,  covering  the  earlier  portion  of  the  peri- 
od while  under  capital  punishment,  the  state  had,  according 
to  judicial  records,  253  homicides.  For  the  remaining  twenty- 
three  years,  without  capital  punishment  and  with  a  larger  pop- 
ulation, the  state  had  only  162  homicides.  With  capital  pun- 
ishment the  homicide  trials  averaged  annually  a  little  less  than 
thirteen.  Without  capital  punishment  the  average  was  seven. 
If  population  is  taken  into  account,  there  were  in  Maine  just 
about  twice  as  many  murders  with  the  death  penalty  as  there 
have  been  without  it.  And  yet  the  gentleman  from  Boston 
who  would  frighten  men  to  repentance  and  send  them  by  the 
lightning    express    to    Paradise,    exclaims,    "Is    Maine,    where 


CAPITAL    PUNISHMENT  67 

murder  is  so  frequent,  humane?"  If  he  would  examine  the 
judicial  statistics  of  his  own  state  for  the  past  fifteen  years, 
he  would  find  that  the  grand,  old  Commonwealth  of  Massa- 
chusetts has  had  twelve  legal  executions  in  that  period  and 
more  homicides  in  proportion  to  population  than  Maine.  The 
gentleman  should  be  ashamed  to  talk  thus  on  ground  once 
hallowed  by  the  footsteps  of  Wendell  PhilHps,  who  thundered 
against  the  death  penalty. 

But  there  are  other  states,  we  are  told,  that  have  abolished  ^ 
the  death  penalty,  and  after  a  brief  experience  have  restored 
it.  This  is  true  of  Colorado  and  Iowa.  The  statistics  of  both 
states,  which  I  have  before  me,  show  that  in  neither  was  there 
an  increase  of  crime  during  the  period  that  the  penalty  was 
suspended,  nor  was  there  diminution  when  it  was  re-established. 
The  warden  of  the  Iowa  state  prison  ought  to  be  a  compe- 
tent witness,  and  this  is  his  testimony.  "I  think  the  abolition 
of  the  death  penalty  had  a  fair  trial  and  should  have  con- 
vinced the  people  that  it  was  a  good  law.  We  certainly  have 
not  had  fewer  murders  committed  since  capital  punishment 
was  reinstated." 

But  we  are  told  that  if  the  state  will  not  execute,  the  peo- 
ple will ;  that  lynchings,  which  have  discredited  us  in  the  eyes 
of  the  civilized-'world,  are  the  direct  result  of  our  failure  to       \ 
apply  the   death   penalty   with   promptitude   and   celerity.     Even 
so   distinguished   a  publicist   as    Dr.    Andrew    D.   White,   if   the 
newspapers   quote   him   aright,   is   inclined   to   this   opinion,   and 
Under   certain    conditions    is    disposed   to    regard   lynching   with 
favor,   as   an   abridgment  of   the  law's   delay.       If   this   opinion      / 
be  correct,  as  numerous  writers  aver,  we  shall,  of  course,  find 
the  majority  of  lynchings  in  the  states  that  have  abolished  the 
death  penalty*!     ^^hat  are  the  facts?     In  the  last  fifteen  years        3 
two   of  these   states  have  not  had  a  single  lynching.     Of   the 
others,  one  has  had  two  lynchings  and  the   other  four,  while 
Georgia,   the   state  that  leads   all   others,   with    172   executions, 
also  stands  second,  with  237  lynchings.     Texas  follows  with  140      \ 
executions   and   183   lynchings.     Alabama   almost  duplicates  the 
record,  with  119  executions  and  206  lynchings;  while  Mississippi, 


68  SELECTED  ARTICLES 

which  falls  a  little  behind,  with  ninety-seven  executions,  leads 
all  the  states  with  249  lynchings.  Of  1,900  executions  and  2,240 
lynchings  in  the  United  States  in  the  last  fifteen  years,  twelve 
states,  with  less  than  one-third  of  the  total  population,  per- 
formed 1,090  executions  and  1,747  of  the  lynchings.  Almost 
without  exception  executions  an.d  lynchings  go  hand  in  hand. 
This  fact  that  "he  who  runs  may  read"  should  dispose  for- 
ever of  the  excuse  that  the  state  must  execute  to  prevent  the 
people  from  taking  the  law  into  their  own  hands. 

Of  the  other  states,  Iowa,  Kansas  and  New  Hampshire 
have  had  no  executions  in  the  last  ten  years.  They  retain  the 
law,  but  veta  the  penalty.  Two  of  these  have  had  no  lynch- 
ings in  the  same  period,  and  in  all  of  them  the  proportion  of 
homicides  is  comparatively  low.  Public  policy,  reason  and  ex- 
perience alike  demonstrate  that  the  safety  of  society  does  not 
demand  the  death  penalty. 

But  we  are  told  that  crime  is  rapidly  increasing  in  the  United 
States.  Dr.  White,  whom  we  all  respect  and  honor  for  his 
courageous  espousal  of  the  cause  of  freedom  before  the  civil 
war  and  for  distinguished  services  to  our  country  in  later  years, 
has  sounded  a  note  of  alarm  that  has  attracted  the  attention 
of  thoughtful  men  from  ocean  to  ocean. 

"Deaths  by  violence,"  says  he,  "are  increasing  rapidly.  Our 
record  is  now  larger  than  that  of  any  other  country  in  the 
world.  The  number  of  homicides  that  are  punished  by  lynch- 
ing exceeds  the  number  punished  by  law.  There  is  nothing 
more  nonsensical  and  ridiculous  than  this  goody-goody  talk 
about  lynching.  Much  may  be  said  in  favor  of  Gold  win  Smith's 
quotation  'that  there  are  communities  in  which  lynch  law  is 
better  than  any  other.' " 

""-'"^Tt  is  said,"  continues  Dr.  White,  "that  society  has  no  right 
to  put  murderers  to  death.  In  my  opinion  society  must  fall 
back  on  the  law  of  self-preservation.  It  should  cut  through, 
in  my  opinion,  for  its  life.  Life  imprisonment  is  not  possible 
because  there  is  no  life  imprisonment."  Such  is  a  portion  of 
this  remarkable  address,  published  broadcast  over  the  coun- 
try.     Many   will   hope   that   this    reference   to   lynching  is   not 

/ 


CAPITAL    PUNISHMENT  69 

correctly  reported.  It  seems  like  presumption  to  question  an  au- 
thority so  high,  but  really  that  sentiment  seems  hardly  worthy 
of  Dr.  White  or  the  venerable  author  whom  he  quotes.  It 
excuses  the  mob,  the  mob  that  wields  aloft  the  bludgeon  and  the 
torch,  and  laughs  in  the  intoxication  of  vengeance  at  the  justice 
that  it  tramples  under  foot.  I  prefer  rather  the  sentiment  of 
a  Southern  governor,  uttered  so  recently  that  it  seems  still 
to  vibrate  in  this  very  air.  To  a  frenzied  mob  about  to  take 
the  life  of  a  man  who  had  committed  a  heinous  crime,  he  said : 

"I  am  a  South  Carolinian,  and  as  governor  of  this  state, 
let  me  beg  you,  let  me  implore,  that  the  law  be  allowed  to 
take  its  course.  The  state  of  South  Carolina  is  on  trial  be- 
fore the  civilized  world.  The  question  is.  shall  the  people  in 
passion  rule  or  shall  the  majesty  of  the  law  be  upheld?"  ^hen 
I  read  that,  I  felt  like  making  a  trip  to  South  Carolina  to  take 
off  my  hat  to  Governor  Heyward.  While  the  appeal  failed  in 
this  particular  instance,  the  spirit  that  it  breathed  is  taking  hold 
of  the  South  and  slowly  but  certainly  closing  a  dark  chapter 
in  the  history  of  the   republic. 

-  Lynchings  have  gradually  diminished  from  236  in  1892  to 
sixty-six  in  1905.  The  South  is  grappling  heroically  with  its 
grave  problem  and  the  solution  seems  in  sight.  The  words  of 
our  sages  should  inspire  the' Governor  Heywards,  not  the  mobs. 

We  are  attempting  to  demonstrate  that  the  safety  and  pres- 
ervation of  society  does  not  require  the  death  penalty.  Dr. 
White  says  there  is  no  such  thing  as  life  imprisonment.  Of 
the  263  life  prisoners  sentenced  in  W^isconsin  only  sixty-five 
have  been  pardoned.  Of  fifty-six  committed  in  Rhode  Island, 
twenty  have  been  pardoned.  The  records  of  every  penitentiary 
in  the  states  that  have  abolished  capital  punishment  show  that 
Dr.  White  is  mistaken  and  that  there  is  such  a  thing  as  life 
imprisonment. 

This  leads  to  another  important  question  which  must  be 
considered  all  too  briefly  here.  What  is  to  be  done  with  the 
life  prisoner?  That  should  depend  upon  the  prisoner  himself. 
When  his  progress  makes  it  certain  that  he  can,  with  absolute 
safety,  be  restored  to  society,  reason  demands  that  he  should 


70  SELECTED  ARTICLES 

be  liberated.  If  his  character  is  such  that  this  can  never  be 
done,  he  should  be  rigidly  confined  and  humanely  treated  to 
the  end  of  his  natural  life.  Who  is  to  determine  his  fitness 
for  parole?  Not  a  pack  of  poHticians  responsive  to  "pull," 
but  an  administrative  officer  and  an  advisory  board,  all  trained 
criminologists,  with  a  tenure  of  office  dependent  upon  efficient 
service. 

Society  is  advised  to  be  stern,  relentless,  or,  quoting  Hter- 
ally,  "to  cut  through."  Occasionally  some  one  arises  and,  look- 
ing deliberately  into  the  past,  proclaims  that  the  virtue  of 
punishment  is  measured  by  its  severity.  They  catch  the  ears 
of  callow  statesmen,  who  introduce  bills  for  the  re-establish- 
ment of  the  whipping  post  and  other  agencies  of  antique  ferocity. 

It  is  becoming  somewhat  the  vogue  to  out-Winkle  Rip  Van 
Winkle  ten  times  over,  and  after  a  rub  of  the  eyes  to  declare  that 
this  shall  be  New  England,  in  the  days  of  the  pillory,  the  stocks, 
and  the  lash.  Quite  recently,  when  some  of  us  were  on  our  way  to 
the  conference,  John  Temple  Graves,  in  his  characteristically 
fervid  eloquence,  called  for  the  revival  of  the  branding  iron 
as  an  instrument  of  punishment.  Only  a  short  time  ago,  not 
far  from  this  place.  Secretary  Bonaparte  proposed  to  cure  an- 
archy by  a  more  general  application  of  the  death  penalty  and 
the  rehabilitation  of  the  whipping  post.  Murder  at  the  hands 
of  the  anarchist  is  a  most  deplorable  crime,  and  in  this  country 
without  the  shadow  of  excuse.  In  every  civilized  nation  the 
penalty  is  death,  swift  and  sure.  But  the  fact  remains  that  the 
penalty  does  not  prevent  the  recurrence  of  the  crime.  Of  the 
supplemental  punishment  suggested  by  the  distinguished  Sec- 
retary, it  has  been  well  said :  "Neither  would  it  benefit  the 
anarchist  nor  the  country  to  have  the  anarchist  publicly  whipped. 
That  sort  of  punishment  would  be  a  martyrdom  and  a  delight 
to  the  anarchist  and  would  do  anything  but  tend  to  make  him 
a  peaceful  citizen.  .  .  .  Excessive  punishments  are  wrong  in 
principle.  The  honest  indignation  of  Secretary  Bonaparte  is 
commendable.  His  proposed  remedies  are  not."  Pleas  for  the 
re-establishment  of  the  whipping  post  and  the  branding  iron 
are  not  to  be  taken  seriously.  They  went  with  the  wreckage 
that  humanitarian  progress  has  swept  away  forever. 


CAPITAL    PUNISHMENT  71 

Dr.  White  says  that  our  record  of  homicide  is  now  greater 
than  that  of  any  other  country  in  the  world.  We  do  not  know 
where  he  gets  his  authority  for  this  statement.  While  the  num- 
ber of  homicides  is  proportionately  high  in  the  United  States, 
Dr.  White's  statement  may  be  seriously  questioned.  It  is  doubt- 
ful whether  statistics  exist  that  would  serve  as  a  fair  basis 
of  comparison.  The  most  valuable  figures  on  homicide  in  the 
United  States,  although  not  official,  are  those  collected  under 
the  editorial  management  of  George  P.  Upton,  of  the  Chicago 
Tribune.  In  a  recent  letter  he  explains  that  the  term  homicide 
is  made  to  include  deaths  by  violence,  and  he  specifies  among  the 
causes  those  occasioned  by  liquor,  insanity,  jealousy,  quarrels, 
self-defense,  strikes,  riots,  and  cases  where  no  cause  is  given. 
It  does  not  include  suicides,  lynchings  and  executions.  The  term 
is  used  broadly,  and  it  seems  that  Dr.  White  has  made  Up- 
ton's statistics  as  the  basis  of  his  claim.  But  if  the  statement 
is  true,  if  the  United  States  has  more  homicides  than  any  other 
nation  of  the  world,  what  does  it  prove? 

In  the  states  that  have  abolished  capital  punishment  the 
proportionate  number  of  homicides  is  low.  If  the  United  States 
leads  all  other  nations  in  the  cnrne  of  murder,  that  disgraceful 
eminence  is  due  to  the  states  that  throughout  their  entire  his- 
tory have  prescribed  and  executed  the  penalty  of  death. 

In  this  letter  to  which  I  have  referred,  Upton  states  that 
he  has  not  kept  statistics  of  homicides  for  separate  states,  but 
that  they  are  proportionately  most  numerous  in  New  York  and 
Pennsylvania  in  the  North,  and  in  Texas,  Tennessee,  Virginia 
and  Mississippi  in  the  South. 

It  is  a  fact  of  prime  significance  that  the  two  Northern  states 
named  lead  also,  absolutely  and  relatively,  in  the  number  of 
legal  executions  in  that  section.  Murder  and  the  death  penalty 
go  hand  in  hand.    They  flourish  together. 

The  states  named  in  the  South  are  likewise  high  in  the  list 
of  executions  and  lynchings.     One  of  them  leads  in  the  latter. 
"The  state  kills  its  enemies.     The  citizen  follows  the  example 
and  kills  his."    "Vengeance  grows  by  what  it  feeds  upon."  Mur-         ^ 
der  and  lynching  and  the  death  penalty  go  hand  in  hand.     They        n 
flourish  together. 


/ 


72  SELECTED  ARTICLES 

If  Dr.  White's  statement  is  true,  in  the  light  of  these  facts 
it  proves  that  after  more  than  a  century  of  trial  in  the  United 
States  the  death  penalty  has  failed,  and  failed  utterly. 

But  Upton  bears  further  testimony.  He  says  that  homicides 
are  relatively  lowest  in  the  New  England  states.  Two  of  these, 
be  it  remembered,  have  abolished  capital  punishment.  The  moral 
is  obvious.  An  official  of  Maine  ^  few  years  ago  said :  "The 
Society  of  Friends  within  our  state  were  ever  urging  in  their 
petitions  to  the  legislature  for  the  abolition  of  the  death  pen- 
alty. The  sentiment  of  our  people  is  now  so  strongly  against 
capital  punishment  that  it  may  be  safely  assumed  that  the  law 
will  never  again  be  enacted  in  Maine."  In  view  of  the  results, 
what  an  incentive  to  consecrated  effort.  What  a  stimulus  and 
inspiration  to  the  interests  that  center  here. 

Capital  punishment  is  growing  unpopular  in  America.  A  well 
known  authority  has  said  that  it  is  the  most  ancient  of  all 
penalties  and  the  most  common  in  antiquity,  as  it  still  is  among 
savages.  The  legal  execution,  with  its  sensational  details,  is  a 
sickening,  disgraceful,  degrading  exhibition.  It  demoralizes  the 
community,  from  newsmonger  down  to  executioner.  Public 
opinion  has  driven  it  from  the  light  of  day  to  the  darkness 
of  midnight  and  the  solitude  and  gloom  of  the  dungeon.  There 
is  none  left  to  proclaim  the  beneficent  influence  of  this  horrid 
spectacle. 

The  death  penalty  does  not  reform,  does  not  deter,  does  not 
protect,  does  not  accomplish  a  single  legitimate  end  of  punish- 
ment. It  has  been  tried;  it  has  failed;  and  it  is  doomed.  It 
may  not  wholly  pass  away  in  your  day  or  mine.  But  an  en- 
lightened public  conscience  will  veto  this  decree  of  blood  and 
write  for  the  state,  as  the  state  has  written  for  its  citizens, 
the  injunction  at  once  rational.  Scriptural,  salutary  and  humani- 
tarian, "Thou  shalt  not  kill." 


CAPITAL    PUNISHMENT  C  7^^ 

Forum.   3:381-91,   June.    1887. 
Death  Penalty.    J.  M.  Buckley. 

The  recent  execution  of  a  woman  for  murdering  her  hus- 
band, under  peculiarly  revolting  circumstances,  has  raised  the 
question  in  some  minds  whether  the  time  has  not  come  for  the 
abolition  of  the  death  penalty.  The  discussions  in  the  press 
and  in  the  New  York  legislature,  on  the  propriety  of  hanging 
a  woman,  were  noteworthy  in  several  respects.  The  governor 
was  besieged  with  petitions  from  within  and  without  the  state. 
Christians,  unbelievers,  and  live-long  opponents  of  capital  pun- 
ishment were  re-enforced  by  the  female  suffragists,  who  pro- 
tested against  the  hanging  of  a  woman,  as  she  had  had  no  voice 
in  the  making  of  the  laws. 

The  press  in  general  held  that  the  law  should  not  discrimi- 
nate on  the  ground  of  sex.  The  governor  referred  the  matter 
to  the  legislature,  declaring  that  unless  it  should  take  action 
he  saw  no  reason  to  interfere.  Whereupon  a  bill  was  introduced 
to  prohibit  the  hanging  of  women;  but  the  legislators  saw  that 
to  make  a  distinction  in  such  a  case  would  be  a  stimulant  to 
the  commission  of  crime.  Immediately  a  distinguished  mem- 
ber introduced  a  bill  for  the  repeal  of  the  statute  inflicting  capi- 
tal punishment.  This  was  rejected  by  the  house  by  a  vote  of 
about  two-thirds. 

Laws  inflicting  capital  punishment  have  been  almost  uni- 
versal. No  conclusive  argument  in  favor  of  any  institution  can 
be  drawn  simply  from  its  antiquity  or  its  universality;  but  when 
any  principle  or  course  of  action  has  been  generally  adopted  by 
mankind,  this  fact  throws  the  burden  of  proof  upon  those  who 
propose  a  change.  If  human  governments  have  no  right  to 
take  life  in  any  case,  capital  punishment  is  judicial  murder;  or 
if  it  can  be  shown  that  there  is  a  more  effectual  method  of  pre- 
venting crime,  the  same  conclusion  follows.  In  any  discussion 
of  the  subject,  the  decision  must  turn  upon  these  fundamental 
questions. 

Theories  of  government — whether  it  be  of  divine  origin, 
implied  compact,  or  a  natural  and  necessary  organization  of  so- 


74  SELECTED  ARTICLES 

ciety — ^have  been  involved  in  the  controversy.  So  far  as  the 
Bible  is  concerned,  it  is  not  difficult  to  determine  the  right  of 
governments  to  take  life.  The  Old  Testament  is  explicit  upon 
this  point,  and  capital  punishment  prevailed  under  often  re- 
peated divine  sanctions  during  the  entire  period  of  the  Law 
and  the  Prophets.  In  the  New  Testament  the  foundations  of 
government  are  formally  discussed  in  the  Epistle  of  Paul  to  the 
Romans,  thirteenth  chapter;  here  it  is  affirmed  that  the  Roman 
government  derived  its  right  from  God: 

For  he  is  the  minister  of  God  to  thee  for  good.  But  if  thou 
do  that  which  is  evil,  be  afraid,  for  he  beareth  not  the  sword  in 
vain:  for  he  is  the  minister  of  God,  a  revenger  to  execute  wratli 
upon  him  that  doeth  evil.  Wherefore  ye  must  needs  be  subject 
not  only  for  wrath,  but  also  for  conscience  sake.  For,  for  this 
cause  pay  ye  tribute  also;  for  they  are  God's  ministers,  attending 
upon  this  very  thing. 

There  are  other  passages  equally  conclusive.  The  teachings 
of  Jesus  Christ  in  the  Sermon  on  the  Mount  cannot  be  alleged 
against  the  punishment  of  criminals  without  overthrowing  the 
structure  of  government.  That  Christ  did  not  mean  to  do  that 
is  clear  from  many  references  to  law,  judges,  legal  punishments, 
taxes,  etc.;  notably  Matt,  xxii,  19-21. 

Show  me  the  tribute  money.  And  they  brought  unto  him  a 
penny.  And  he  said  unto  them,  "Whose  is  this  image  and  super- 
scription? They  said  unto  him,  Caesar's.  Then  said  he  unto  them, 
Render  therefore  unto  Caesar  the  things  Which  are  Caesar's  and 
unto  God  the  things  that  are   God's. 

The  Sermon  on  the  Mount  teaches,  in  opposition  to  the  law 

of  retaliation,  the  spirit  of  personal  forgiveness,  sympathy,  pity, 

and  the  desire  to  lead  the  offender  to  a  better  mind,  rather  than 

to  find  gratification  in  inflicting  deserved  pain  uppn  him.     But 

the    administration    of    law    according   to    the    New    Testament 

rests  upon  another  basis.     So  that  it  is  possible   for  a  man  to 

possess   the    spirit   inculcated   by    Christ,   and   yet   promote  the 

conviction    of   a    criminal.     Any   use   of    Christ's    words    which 

would    make    them    incompatible    with    the    infliction    of    capital 

punishment,  provided  the  same  be  shown  to  be  necessary,  would 

bear  equally  against  all  forms  of  legal  punishment. 

/^^  On  all  other  theories  of  government  society  must  have  the 

/    right  to  do  whatever  is  necessary  to  maintain  itself.     So  that 

(     the  question  is  whether  there  is  a  more  effectual  way  of  pre- 


^ 


CAPITAL    PUNISHMENT  75 

venting  crime  than  by  the  execution  of  those  to  whose  crime 
the  present  law  affixes  the  penalty  of  death.  The  final  object  _, 
^o_be  attained  by  all  punishment  under  human  government  is 
the  prevention  of  crime.  This  involves,  several  conditions.  The 
criminal  must  be  placed  where  he  cannot  commit  crime,  lie 
must  be  Teformed.  if  possible,  so  that  he  will  be  able  and  will- 
nig  to  resist  temptations,  and  his  fatcauust  be  made  a  warning 
to  others.  /It  is  clear,  however,  that  some  criminals  cannot  be 
reformed";  the  presumption  that  they  cannot  being  drawn  from 
their  deeds  and  from  a  knowledge  of  their  personal  characters. 
Society,  therefore,  has  adopted  a  graduated  scale ;  inflicting 
light  punishments  for  the  smaller  crimes  called  misdemeanors, 
severer  penalties  for  felonies,  and  so  on,  until  the  worst  are 
reached,  these  being  punished  by  imprisonment  for  life,  or  by 
death. 

Practically,  therefore,  the  question  narrows  itself  to  this :  If 
the  death  penalty  be  restricted  to  murder  committed  with  mal- 
ice prepense,  by  a  sane  person,  in  resisting  arrest,  or  in  the 
commission  of  another  felon}-,  is  it  the  best  method  of  pre- 
venting such  crimes?  It  is  affirmed  that  the  taking  of  human 
life,  even  by  judicial  proces^ses,  after  clear  conviction,  diminishes 
Its  sacreUness  and  thus  leads  to  murder.  This  is  an  argument 
aganfsT'public  executions,  nothhig  more.  The  conduct  of  crimi- 
nals, the  gushing  sentimentality  with  which  they  are  treated, 
the  crowding  of  towns  with  spectators  of  both  sexes  and  all 
ages,  the  minuteness  with  which  the  sickening  particulars  of 
the  prisoner's  conduct  before  the  execution  and  upon  the  scaf- 
fold are  published,  the  publicity  given  to  his  last  words,  the 
maudlin  devotion  of  some  women  to  almost  every  murderer, 
and  the  effeminate  conduct  of  most  ministers  who  are  brought 
before  the  public  as  spiritual  advisers  of  the  condemned,  form  a 
combination  of  depraving  elements,  whose  natural  tendency  is 
to  promote  crime.  That  the  solemn  infliction  of  capital  pun- 
ishment, apart  from  such  scenic  accessories,  would  diminish^__^ 
tHe^acrediTess '  of  human  life,  or  lead  directly  tp  murd^^^  i,^ , 
but  a  gratuitous   asumption. 

The  alternative   must  be  imprisonment   for  life,   for  no  nnp 
has  yet  appeared  to  advocate   a  sentence  of  less  duration   for 


76  SELECTED  ARTICLES 

murder  in  the  first  degree.  It  is  assumed  that  such  imprison- 
ment  will  place  the  murderer  wher&Jie  cannot  commif  a  simi- 
TaTacT;  for  the  gravity  of  his  crime  demands  that  "an^xaJSpI 
--be -made,  and  for  this  end  nothing  less  than  such  hopeless  im- 
prisonment will  be  adequate.  Upon  such  an  assumption  his  ref- 
ormation, if  he  does  reform,  affects  not  all  his  subsequent  re- 
lations to  society,  to  which  he  is  as  one  dead,  but  only  his 
personal  character.  Hence^he  j[ue£tion  is  once  more  circum- 
scribed to  whether  such  imprisonment  be~^^uffi'clent  to  act  a,s 
a  deterrent:  and  whether  it  be  possible,  without  greater  cruelty 
tHan  is  inflicted  in  capital  punishment,  to  maintain  imprison- 
ment for  life. 

In  new  countries,  without  prisons  or  regular  judicial  proc- 
esses, the  murderer  and  even  the  horse-thief  is  hanged,  and  the 
moral  sense  of  the  best  citizens  approves  it.  There  is  nothing 
else  to  do  with  him.  He  cannot  be  kept  in  restraint;  he  can- 
not be  allowed  his  freedom.  Judge  Lynch  there  holds  his  court 
by  day  and  night;  nor  does  he  adjourn  for  legal  holidays  or 
Sundays.  From  his  judgment  there  is  no  appeal;  no  exceptions 
can  be  taken;  no  jurors  disqualified;  no  challenges  allowed; 
no  defects  in  the  indictment  pleaded;  no  delays  permitted  in 
the  interest  of  the  guilty  man.  Here  no  insistence  upon  tech- 
nical points  can  preserve  the  life  of  the  criminal  until  the 
memory  of  his  crime  has  been  obliterated,  and  he  appears  as 
a  poor,  persecuted,  and  friendless  wretch,  whom  it  would  be 
an  act  of  philanthropy  to  release.  But  Judge  Lynch,  though 
absolute  in  power,  is  not  infallible.  He  appeared  at  his  best 
in  the  days  of  the  Vigilance  Committee  in  San  Francisco.  Then 
the  culprit  had  a  short  shrift;  and  Judge  Lynch  was  certain 
that  if  in  any  case  the  victim  had  not  committed  the  offense 
with  which  he  was  charged,  he  had  committed  enough  to  jus- 
tify his  speedy  surrender  by  the  then  imperfectly  formed  so- 
ciety to  the  Judge  Supreme. 

But  the  question  must  turn,  not  upon  exceptional  cases  of 
inchoate  commonwealths,  but  upon  the  practice  of  established 
governments,  with  all  the  powers  implied  in  the  civilization 
of  the  nineteenth  century.     It  should  be  noted  that  imprison- 


CAPITAL    PUNISHMENT  'jj 

ment  for  life,  with  the  possibility  of  pardon  or  escape,  is  a 
guaranteed  siipportr  nncTeY  '  ctftlTfnst^rices '  from  vvlTicir  man£^f 
Ihe  criniinal  classes  would  not  shrink ;  which  not  a  few  accept, 
after. their -desperate  and  hopeless  lives,  without  any  mani- 
festation  of  grief  or  painful  apprehension  :  and  which  the  ma- 
jority  hail  with  joy  when  their  fate  ha-  l)een  uncertain,  con- 
sidering it  an  innnense  relief  to  e>cape  the  death  penalty.  The 
same  element  has  been  found  to  be  of  great  importance  in  in- 
ducing persons  to  turn  state's  evidence.  It  is  the  opinion  of 
some  penologists  that  only  criminals  of  unusually  refined  and 
reflective  natures  would  prefer  death  to  imprisonment  for  life; 
and  it  is  probable  that  the  thoughts  voiced  in  Hamlet's  solil- 
oquy : 

rather  bear  those  ills  we  have, 
(     Than  fly  to   others   that  we  know  not  of, 

would  be  sufficient  to  keep  them  from  "shuffling  off  this  mortal 
coil,"  except  under  circumstances  to  be  hereinafter  mentioned. 

A  point  of  the  first  importance  is  that^  imprisonment  for 
life  offers  a  premium  on  additional  murder.  If  a  man  has  aP 
ready  comlmitteB  murdeF"  m  i[he  first  degree,  has  been  sen- 
tenced for  life  for  the  commission  of  that  crime,  and  is  un- 
repenitant;  if  this  be  the  highest  penalty  allowed,  what  is  to 
deter  him  from  attempting  to  escape  by  the  murder  of  his  keep;- 
ersf*  If  he  shall  make  a  dash  for  Hberty  and  kill  his  keeper, 
and  shall  be  brought  back,  he  is  simply  where_^he  was  before — 
senteTiced  for  life.  And  the  same  views  which  would  lead  to 
the  abolition  of  capital  punishment  would  prevent  the  infliction 
of  iJhysical  pain  upon  him.  Murders  have  been  perpetrated 
by  prisoners  under  a  Hfe  sentence,  in  states  where  capital  pun- 
ishment is  not  allowed.  Nor  is  there  any  reason  to  suppose, 
if  prison  discipline  were  in  any  case  relaxed  so  as  to  offer  the 
hope  of  escape,  that  many  such  murderers  would  be  deterred 
from  the  attempt  by  any  fear  that  they  might  be  the  meaiis 
of  the  death  of  an  officer.  Again,  if  imprisonment  for  life 
be  the  penalty  for  one  "murder,  and^capTt al  punishment  in  no 
case ^fefi. allowed,  then  the  commission  of  two  or  three  mur- 
ders at  the  time  of  the  original  crime,  or  to  destroy  witnesses 
thereof,  would  not  add  to  the  penalty. 


/ 


78  SELECTED  ARTICLES 

^9r„is_  it  lust  to  say  that  persoiis  in.t£jaL-iipmi.aiiurder  are 
[never  mindful  of  such  considerations  as  these.  Murder  in  the 
fijist  degree  involves  premeditation ;  and  authentic  instances 
exist  of  murderers  decoying  their  victims  into  jurisdictions  where 
the  death  penalty  does  not  prevail  so  that  in  case  they  should" 
fail  to  escape  after  the  mnrder  which  they  had  planned,  they 
would  be  liable_tamiprisonment  only.  And  the  elaborate  scheme 
to  take  them  out  of  the  state  in  which  capital  punishment 
existed  into  one  in  which  imprisonment  for  life  was  the  sole 
penalty,  was  as  deliberately  contrived  as  the  murder  itself.  I 
have  seen  a  man  in  prison  for  life  who  had  murdered  his  fa-_ 
ther,  his  mother,  and  Jhis  wife ;  murdering  his  wife  that  he_ 
niight  be  free  to  marry  a  woman  of  whom  he  was  enamored, 
and  his  parents  that  he  might  get  hold  of  their  property.  There 
were  no  evidences  of  insanity,  and  he  constantly  assigned  after 
his  conviction,  as  a  reason  for  killing  them  all,  Jhat_"he  might 
"as  well  be  hung  for  a  sheep  as  a  lamb,  and  if  he  killed  only 
his  wife  he  would  be  as  badly  off  if  he  was  caught  as  if  he 
killed  the  whole  of  them." 
^^To" prevent  escape  is  the  first  essential  to  the  execution  of 
a  life  sentence,  and  this  was  originally  accomplished  by  soli- 
tary confinement.  But  solitary  confinement  almost  invariably 
produces  insanity  in  a  comparatively  short  time.  I  have  seen 
seven  insane  murderers  in  the  penitentiary  of  a  state  where  the 
death  penalty  had  been  abrogated.  Not  all  of  them  became 
insane  through  soHtary  confinement,  but  some  did,  and  the 
tendency  is  unquestionable.  Instances  in  former  years,  in  Eng- 
land, were  so  common  among  solitary  life  prisoners  that  the 
number  was  published,  and  used  in  every  discussion  of  this 
subject.  Civilization  cries  out  against  soHtary  confinement, 
except  as  a  penalty  employed  for  short  periods,  for  the  pur- 
pose of  keeping  order  in  prisons. 

Co-operative  work  is  the  concomitant  of  non-solitary  con- 
finement; for  to  allow  men  to  be  together  and  to  be  idle  would 
destroy  order,  and  afford  the  opportunity  for  rebellion,  riot, 
and  escape.  Co-operative  work  gives  an  opportunity  for  es- 
cape,  and    for   crime;    and   it   is   not   very   uncommon    for   one 


CAPITAL    PUNISHMENT 

prisoner  to  assault  or  murder  another,  or  an  officer,  or  to  es- 
cape. The  use  of  tools,  the  change  of  place,  and  many  other 
things  combine  to  inspire  hope  of  escape  in  the  minds  of  des- 
perate criminals. 

The  subject  of  pardon  is  even  more  important.  The  manner 
in  which  pardons  are  procured  and  granted  in  the  United  States 
has  attracted  the  attention  of  observers  in  foreign  lands,  who 
have  often  asserted  in  the  periodicals  of  Europe  that  nothing 
like  it  can  be  found  elsewhere  in  the  civilized  world.  Compara- 
tively few  who  receive  a  life  sentence  remain  in  prison  until 
death.  The  number  of  those  having  friends  and  personal  or 
political  influence  who  do  so  is  very  small.  In  1870,  having 
occasion  to  make  some  inquiries  into  this  subject,  I  wrote  to 
Dr.  James  T,  Edwards,  at  that  time  a  member  of  the  Senate 
of  Rhode  Island,  in  which  state  capital  punishment  did  not 
exist.  I  wrote  to  Dr.  Edwards,  because  I  had  read  a  short 
time  before  a  remarkable  address  delivered  by  him  in  the  Sen- 
ate upon  the  subject  of  pardons  and  the  exercise  of  the  par- 
doning power.    His  reply  I  now  place  before  the  reader  : . — -— tt 

East  Greenwich,  R.  I.,  March  21,   1870.  / 

J.  M.  Buckley.  Dear  Sir:  Last  year  I  had  occasion  to  in- 
vestigate the  wliole  subject  of  punishment  for  crimes,  and  in  the 
couise  of  my  Investigation  I  communicated  with  every  governor 
in  the  United  States. 

After  a  thorough  and  impartial  comparison  of  our  own  system 
with  that  of  other  states,  and  a  full  investigation  into  the  statistics 
of  crime  here  and  elsewhere,  both  now  and  in  the  past,  I  have 
formed  the  deliberate  conviction  that  it  would  be  for  the  interests 
of  humanity,  and  the  promotion  of  public  security  and  order,  to 
establish   capital   punishment   in   the  state   of  Rhode  Island. 

Murder  has  disproportionately  increased  since  its  abolition,  and 
in  fact  it  reduces  itself  to  this:  We  neither  hang  nor  Imprison 
for  life  for  murder  in  the  first  degree.  The  criminals  are  pardoned 
and  I  think  that  no  man  "imprisoned  for  life"  has  ever  died  in 
our  prison.  Be  that  as  it  may,  had  I  time  I  could  give  you  ) 
startling  facts  to  show  you  how  justice  is  tampered  with  here  1 
under  the  present  system.     Truly  yours,  J.  T.  Edwards.  / 

On  the  other  hand,  if  pardon  be  rendered  impossible  under-^ 
any  circumstances,  two  things  are  to  be  considered:  that  the 
rectification  of  mistakes  would  be  attended  with  difficulty,  and 
the  maintenance  of  order  in  prisons  would  not  be  possible  with- 
out cruelties  from  which  humanity  would  recoil.  The  case 
seems,  therefore,  to  reduce  itself  to  this :  that  to  make  escape 
practically  impossible,  cruelties  must  be  constantly  perpetrated. 


8o         ,  SELECTED  ARTICLES 

or  the  pardoning  power  must  exist.  And  after  the  memory 
of  the  crime  is  forgotten,  sympathy  usurps  the  place  of  judg- 
ment; the  murderer's  friends  are  persistent;  the  friends  of  his 
victim  are  silent;  fables  are  told  concerning  his  health;  his 
wife,  perhaps,  dying,  pleads  that  he  may  be  pardoned;  political 
influence  is  enlisted,  and  he  comes  forth,  the  hope  that  he  took 
with  him  of  escape  or  pardon  fulfilled. 

About  the  same  time  that  I  wrote  to  Dr.  Edwards,  I  wrote 
to  the  mayor  of  the  city  of  Detroit,  of  whose  sentiments  upon 
the  subject  I  was  entirely  ignorant,  and  received  from  him 
the  following  reply: 

I  am  of  the  opinion,  after  a  residence  in  tliis  state  of  over  six- 
teen years,  that  the  security  of  life  would  be  increased,  and  the 
ends  of  justice  promoted  bj*  the  adoption  of  capital  punishment 
for  murder  in  the  first  degree,  when  the  party  is  convicted  upon 
positive  evidence. 

I  also  wrote  to  an  eminent  lawyer  of  Detroit,  Mr.  D.  Bethune 

Duffield,  who  replied  as  follows : 

I  am  decidedly  of  the  opinion  that  life  is  by  no  means  as  secure 
with  us  under  our  laws,  which  some  years  since  abolished  capital 
punishment,  as  it  was  before,  or  as  it  would  be  in  the  event  of 
its  restoration.  ...  It  is  admitted  by  those  who  prefer  soli- 
tary confinement  to  the  death  penalty,  that  the  murderer  has  for- 
feited his  life  so  far  as  all  intercourse  with  his  kind  is  concerned, 
and  he  must  be  put  out  of  the  way  and  shut  up  the  balance  of 
his  days;  "but  with  a  view  to  his  reformation!"  His  reformation, 
for  what  end?  If  they  mean  for  his  entrance  into  the  next  world 
(and  they  can  mean  nothing  else,  as  the  man  cannot  return  to 
society),  that  may  be  done  and  the  death  penalty  be  still  inflicted. 
.  .  .  But  to  say  that  the  abolition  of  the  death  penalty,  and 
the  substitution  of  solitary  confinement,  is  humanitarian  in  its 
i:ractical  workings,  is  not  trucpTPfe  statistics  of  our  state  prison 
show  that  death  or  insanity  comes  to  the  rescue  of  the  prisoner 
in  about  the  eighth  or  ninth  year  of,  his  confinement,  and  in  the 
case  of  a  woman  generally  sooner.  I  refer  you  to  a  table  of 
statistics  on  this  point,  in  the  Report  of  our  State  Prison  In- 
spectors for  1868,  page  58.  Doubtless  the  death  and  insane  record 
would  aprear  even  larger,  but  that  another  modification  of  the 
law's  penalty  leaves  it  discretionary  with  certain  of  ovir  execu- 
tive authorities  to  relieve  the  convict  from  his  solitarj'  confine- 
ment, and  nut  him  to  hard  labor  with  the  rest  of  the  prisoners. 

It  was  in  the  prison  referred  to  by  Mr.  Duffield  that  I  had 
seen  seven  insane  murderers,  and  in  that  same  prison  an  officer 
of  high  grade  was  subsequently  murdered  by  a  life  convict.  In 
Michigan  the  feeling  against  the  present  law,  and  in  favor  of 
the  re-enaction  of  capital  punishment,  has  been  constantly  in- 
creasing :   and   while  this   article  was   in  preparation   a  bill   for 


CAPITAL    PUNISHMENT  ^  8i 

that  purpose  failed  in  the  House  of  Representatives  by  only  one 
vote.  Into  the  subject  of  statistics  I  do  not  enter;  not  because 
of  any  fear  as  to  the  result,  but  on  account  of  the  fact  that  mere 
figures,  independent  of  an  analysis  of  national  temperament, 
social  condition,  climate,  history,  and  government,  reflect  no 
more  light  upon  such  questions  as  this  than  they  do  upon  suicide, 
insanity,  longevity,  or  the  increase  of  the  population.  ,y 

The  most  common  objection  to  capital  punishment  is  the 
possibility  of  mistake.  That  some  innocent  persons  have  been 
executed  cannot  be  denied.  That  the  number  is  very  small 
is  the  opinion  of  those  best  informed ;  but  the  possibility  of 
error  must  be  admitted.  The  common  form  of  stating  the  case 
is :  "When  a  government  takes  human  life,  it  takes  what  it 
cannot  restore  in  case  of  a  mistake."  But  the  possibility  of 
mistake  did  not  prevent  the  infliction  of  the  death  penalty  un- 
der the  divine  administration.  The  whole  history  of  the  Jews 
confirms  this  point ;  and  unless  it  is  held  that  in  the  times  cov- 
ered by  the  Bible  every  judicial  decree  was  infallible,  this  should 
be  sufficient  to  dispose  of  the  question  in  the  minds  of  believers 
in  the  Bible  as  a  divine  revelation.  But  as  many  citizens  would 
not  be  governed  by  considerations  drawn  from  any  form  of 
religion,  it  would  seem  sufficient  to  remind  them  that  the  lia- 
bility to  mistake  attends  all  human  judgments.  False  imprison- 
ment takes  away  from  a  man  what  can  never  be  given  back; 
the  time  for  which  he  was  imprisoned  is  forever  gone;  and  the 
possibility  of  spending  an  entire  life  in  prison  upon  a  false 
charge  has  been  demonstrated.  Besides  this  prisoners  under 
such  circumstances  are  liable  to  become  insane,  and  cases  of 
suicide  from  despair,  where  the  prisoner  was  subsequently  proved 
innocent,  are  not  unknown.  So  that  to  denounce  any  form  of 
punishment,  justifiable  on  other  grounds,  on  this  consideration 
alone  is  unreasonable.  " 

In  this  age  men  will  rarely  be  sentenced  to  death  where  the 


J> 


evi3ence  is  not  conclusive  be3^ond  the  possibilitv  of  a  doubtj^ 
and  with  the  r^^W^^J:  fhaf  ^-^^^^  In  th^  ftxeriitton  of  the  law,  ^he 
opportunities  for  new  trials  and  commutations  of  sentence,  the 
mterests  of  the  prisoners  are  far  better  protected  than  those  of 


82  /  SELECTED  ARTICLES 

ths^  state,   or  those  of   private  individuals   who  are  the  subjects 
of.  criminal  outrages. 

In  the  course  of  my  investigations  of  this  subject,  having 
heard  that  the  late  John  A.  Kennedy,  for  many  years  Superin- 
tendent of  the  Metropolitan  Police  in  the  city  of  New  York, 
had  originally  disapproved  of  capital  punishment,  I  addressed 
a  letter  to  him,  to  w^hich  I  received  the  following  response,  in 
which  the  whole  subject  is  clearly  and  unanswerably  stated: 
Office  of  the  Superintendent  of  Metropolitan  Police, 

New  York  City,  March  17,  1870. 

J.  M.  Bi  CKLEy,  Dear  Sir:  To  inquiries  such  as  yours  I  have 
uniformly  declined  to  make  reply.  My  theoretic  opinions,  formed 
in  early  life,  were  adverse  to  taking  life  under  any  circumstances, 
and  during  a  term  as  petit  juror  of  nearly  twenty  years,  I  man- 
aged to  avoid  being  on  the  panel  of  capital  trials,  excepting  in 
two  cases,  where  the  verdicts  were  manslaughter.  But  I  mvist 
acknowledge  that  my  views  have  undergone  a  change  on  this, 
as  on  other  subjects,  where  experience  and  observation  have 
operated  on  my  judgment.  And  especially  so  since  circumstances 
have  brought  me  in  immediate  contact  with  the  criminal  classes. 

The  first  lesson  I  learned  was  that  our  so-called  reformatory 
prison  discipline  was  a  failure,  so  far  as  reformation  is  concerned; 
that  its  only  benefit  consisted  in  keeping  the  criminal  out  of  the 
way  of  doing  harm,  so  long  as  he  was  incarcerated;  that,  with 
scarce  an  exception,  criminals  come  out  of  prison  better  schooled 
for  crime,  more  hardened  to  undertake  desperate  chances  in  crime, 
and  with  increased  personal  acqviaintanceship  with  the  criminal 
classes,  than  when  they  entered  the  establishment.  Indeed,  I 
regard  the  reform  of  a  criminal,  after  a  second  conviction,  as 
very  nearly  impossible. 

In-  legard  to  the  class  of  offenses  known  as  capital,  the  per- 
petrators are  usually  among  persons  who  are  not  regarded 
of  the  dangerous  classes;  as  jealousy,  disappointment,  drink,  or 
sudden  passion  may  influence  a  person,  theretofore  of  good  char- 
acter, to  commit  a  murder.  And  if  there  could  possibly  be  such 
a  thing  as  leformation  by  prison  confinement,  it  would  probably 
be  more  in  consonance  with  modern  ideas  of  humanity  that  im- 
prisonment for  life  should  be  substituted  for  capital  punishment. 
But  no  such  reformation  follows  imprisonment  as  a  rule.  Reforma- 
tion is  exceptional.  Then,  should  the  class  I  have  described  be 
so  sentenced,  our  experience  in  this  country  is,  unless  the  prisoner 
dies  early,  that  our  sympathies  operate  upon  the  pardoning  power, 
and  the  prisoner  is  released  a  much  worse  inan  than  he  was  when 
first  convicted. 

In  regard  to  the  bad  classes,  who  commit  such  offenses  for 
revenge,  or  hire  as  an  assassin,  or  in  the  perpetration  of  some 
other  felony,  or  mere  wantonness  and  recklessness  of  human  life, 
I  have  to  say  that,  frequently  as  these  occurrences  now  take  place, 
the  number  would  undoubtedly  be  frightfully  increased  were  the 
fear  of  the  gallows  entirely  removed  from  their  depraved  appre- 
hensions. 

Uncertain  as  are  convictions  for  the  higher  crimes  by  courts 
in  this  community,  yet,  that  there  is  a  possibility  of  their  worth- 
less lives  being  the  forfeit  of  such  crime,  holds  in  check,  to  an 
astonishing  extent,  the  worst  population  now  having  existence  on 


CAPITAL    PUNISHMENT  83 

the  footstool  of  the  Almighty.  Should  the  legislature  of  New  York 
ever  abolish  capital  punishment  in  this  state,  I  should  regard  the 
vicinity  of  this  city  as  a  very  unsafe  place  as  a  residence,  or 
even  to  visit.  I  would  bid  the  locality  a  final  adieu.  The  last 
case  of  conviction  for  murder  in  this  city  presented,  under  testi- 
mony, that  the  reckless  peipetrator,  immediately  after  arrest, 
showed  his  confidence  in  his  safety,  by  explaining,  "Hanging's 
played  out,"  immediately  after  having  confessed  that  he  had 
committed  the  crime.  r 

In  conclusion,  allow  me  to  say  my  experiences  have  convinced 
me  that  it  would  tend  to  the  increase  of  capital  offenses  to  re- 
lieve the  perpetrators  from  capital  punishment  by  law,  until  we 
—  reach  that  condition  of  moral  improvement  described  by  the 
prophet,  when  "the  lion  shall  eat  straw  like  the  ox."  When  that 
day  comes,  if  I  have  a  voice,  it  shall  be  raised  in  favor  of  abol- 
ishing capital  punishment.  Yours  truly, 
^^„^.»'^  John  A.   Kennedy. 

ij     Lynch  law  is  the  natural  product  of  the  treatment  of  crimi- 
\  ftals  in  too  indulgent  a  manner.     The  uncertainties  of  the  ad- 
I  ministration   of   justice,   and   the   escape   of   the   criminals    from 
'  even  the  insufficient  penalties  pronounced  against  them,  account 
for  many  of  the  terrible  scenes  of  burning,  shooting,  and  hang- 
ing which  disgrace  our  civilization.     Nor  are  these  crimes  com- 
mitted in  the  South  alone,  or  on  the  frontiers.     It  is  extremely 
grievous  for  human  nature  at  its  best  estate,  to  see  one  who 
has  murdered  a  father,  a  wife,  or  a  child,  or  ruined  a  daughter, 
alive,    and,    perhaps    through    political    influence    and    cunningly 
devised  fables,  set  free ;  and  not  a  few  homicides  have  resulted 
from  such  provocation;  whereas,  if  the  punishment  of  criminals 
in   a   manner   in   harmony   with   a   common    sense   judgment   of 
their  deserving  were  certain,  only  sudden  outbreaks  of  passion 
would  lead  to  interference  with  legal  processes 


>reat 


The  present  mode  of  execution  is  not  essential.  Hanging 
is  repulsive,  though  it  is  a  consideration  of  importance  whether 
the  method  of  punishment  should  not  express  in  some  unmis- 
takable way  the  detestation  of  society  for  the  crime.  But  the 
progress  of  civilization  may  devise  a  better  way.  The  guillo- 
tine was  an  unsuccessful  attempt  to  do  so.  What  is  essential 
is  that  the  penalty  for  premeditated  murder  without  extenuat- 
ing circumstances  shall  be  more  certain,  speedy,  and  private 
in  its  execution  than  it  now  is,  and  that  it  shall  be  death. 


84  SELECTED  ARTICLES 

Green  Bag.  10:92-6.  March,  1898. 

Abolish  the  Death  Penalty.    James  W.  Stillman. 

No  man  ought  to  be  punished  for  any  crime  which  he  has 
committed  simply  for  the  purpose  of  deterring  others  from  do- 
ing likewise,  although  his  punishment  may  ^  or  may  not  produce 
that  effect  upon  them.  If  any  criminal  deserves  such  treat- 
ment at  all,  it  must  be  solely  on  his  own  account  and  not  on  that 
of  others  who  have  not  yet  committed  any  offence  deserving 
of  the  same  penalty. 


Harper's  Weekly.  50: 1028-9.  July  21,  1906. 

Does  Capital  Punishment  Tend  to  Diminish  Capital  Crime: 

Thomas  Speed  Mosby. 


The  death  penalty,  as  a  feature  of  the  penal  code,  is  un- 
dergoing a  process  of  evolution  which,  judging  from  existing 
tendencies  and  those  which  have  characterized  the  world's  juris- 
prudence during  the  past  fifty  years,  must  result  in  its  com- 
plete extinction.  It  now  exists  in  forty  states  of  the  American 
union. 

In  the  investigation  of  this  subject,  the  writer  caused  in- 
quiries to  be  addressed  to  the  attorney-generals  of  these  forty 
states,  asking  their  opinion  as  to  whether  capital  punishment 
tended  to  diminish  capital  crime. 

Eighteen  of  the  forty  declined  to  express  an  opinion.  Only 
sixteen  of  the  attorney-generals  of  states  which  inflict  the 
death  penalty  declared  themselves  as  clearly  of  the  opinion  that 
capital  punishment  does  tend  to  diminish  capital  crime.  Two 
of  the  forty  were  positive  in  their  conviction  that  the  death 
penalty  does  not  tend  to  diminish  capital  crimes,  and  stated 
their  opinion  that  the  death  penalty  should  be  abolished,  while 
four  of  the  forty  give  qualified  answers. 

In  the  five  states  of  Kansas,  Maine,  Michigan,  Rhode  Is- 
land, and  Wisconsin,  where  capital  punishment  does  not  exist, 


CAPITAL    PUNISHMENT  85 

the  attorney-generals  have  noted  no  increase  in  capital  crime 
since  the  abolition  of  the  death  penalty,  and  generally  express 
themselves  as  satisfied  with  the  conditions  existing  in  their 
respective  states.  In  Michigan,  Wisconsin,  and  Rhode  Island 
capital  punishment  was  abolished  over  fifty  years  ago,  and  has 
not  since  been  re-enacted.  Though  nominally  prescribed  by 
law  in  Kansas,  the  death  penalty  can  be  executed  in  that  state 
only  upon  the  governor's  warrant,  and  the  Kansas  governors 
have  persistently  declined  to  issue  a  death  warrant,  the  con- 
demned persons,  meanwhile,  remaining  in  prison.  In  five  other 
states  where  the  death  penalty  exists  the  trial  juries  have  pow- 
er to  commute  it  to  life  imprisonment. 

The  death  penalty  was  abolished  in  Iowa  several  years  jago, 
but  was  again  en^^^«*^  >7  th*"  i^gigl^<^"t-^  as  the  attorney-gen- 
eral  saySy  "because  of  the  increase  of  murders  in  the  state.]' 
T.t  aoes  not  follow,  of  course,  that  these  sequent  murders  were 
c(7nsequent  upon  the  abolition  of  the  death  penalty.  Singular- 
ly enough,  the  experience  of  Maine  has  been  quite  the  reverse 
of  this.  The  death  penalty  was  abolished  in  Maine  in  1876.  In 
1883  it  was  re-enacted  for  the  crime  of  murder  alone.  In 
1885,  just  two  years  later,  the  governor  of  Maine,  in  his 
message,  referring  to  the  death  penalty,  remarked  that  there 
had  been  "an  unusual  number  of  cold-blooded  murders  with- 
in the  state  during  the  two  years  last  past,"  and  that  the 
change  in  the  law  relating  to  murder  had  not  afforded  the  pro- 
tection anticipated.  Two  years  later,  in  1887,  the  death  pen- 
alty was  again  abolished,  and  advices  from  Maine  are  to  the 
effect  that  the  sentiment  of  the  people  of  that  state  is  so  strong- 
ly against  capital  punishment  that  there  is  little  likelihood 
that  the  death  penalty  will  ever  be  re-established  there. 


86  SELECTED  ARTICLES 

Harper's  Weekly.  53:8.  July  3,  1909.  f 

Should   Capital    Punishment   Be   Abolished?     Edward 
Charles  Spitzka. 

There  are  a  number  of  cases  on  record  of  men  who,  after 
serving  a  sentence  for  felonious  murder  and  being  released, 
have  committed  a  second  murder  oi  the  same  character.  Last 
year  M.  Delyannis,  the  Prime  Minister  of  Greece,  was  about 
to  step  into  his  carriage  outside  the  Parliament  House  when 
a  man  named  Gherakaris,  who  had  come  forward  to  open 
the  door,  turned  upon  him  and  murdered  him.  This  mur- 
derer had  recently  been  discharged  from  jail,  where  he  had 
served  a  sentence  for  the  murder  of  his  wife.  The  motive 
of  the  crime  reveals  the  reformative  efficacy  of  imprisonment 
to  be  of  a  rather  questionable  kind.  The  victim  had  under- 
taken to  abolish  gambling-houses  in  Athens.  The  murderer 
was  a  professional  gambler,  and  resented  this,  being  additionally 
stimulated  by  others  of  the  same  profession.  Auxiliary  mo- 
tives of  a  financial  nature  were  suspected. 

A  second  case  of  this  nature  occurred  thirteen  years  ago 
in  Leghorn,  where  the  editorial  writer  Bandi  was  stabbed 
to  death  by  a  certain  Lucchesi,  whose  skill  in  the  science  of 
assassination  need  have  caused  no  surprise,  since  he  had  al- 
ready served  his  apprenticeship  in  jail  for  a  previous  crime  of 
the  same  character.  On  the  occasion  of  his  previous  trial  his 
counsel  had  pleaded  the  Lombroso  degeneracy  doctrine,  where- 
upon Bandi  wrote  an  editorial  denouncing  this  procedure,  and 
ridiculing  the  doctrine.  The  article  was  so  convincing  that 
the  Public  Prosecutor  waived  the  ordinary  summing  up  and, 
in  place  of  it,  read  Bandi's  words  to  the  jury,  who  promptly 
convicted  Lucchesi.  During  his  term  in  jail  the  murderer 
nourished  a  fierce  hatred  against  the  man  whom  he  regarded 
as  the  cause  of  his  condition,  and  as  soon  as  he  was  released 
he  murdered  him. 

Had  capital  punishment  prevailed  the  lives  of  Bandi  and  the 
Greek  Premier  would  have^T)e'^ — ^ar^d-  at  the  expense.-jof 
those  of  the  assassins.     Th<5se  who  preserved  the  latter,  to  the 


CAPITAL    PUNISHMENT  87 

sacrifice  of  the  former,  hv  ttif  ahnlit^^*i  nr  diKiisp,  ni  the  deaths 
penalty,    are    arressorv   to    the    wantoii    murd^iL^j^    useful  ^nd 
eminent  citizens.     The  ppnrinje^   responsible   for   such   a  para- 
rlox   and   travesty  of    msti^fi   mav   ^filL^$elt_humar^ 


MiF  from  genuine  humanity  it  is  as  far  remnved  as  anti-vivi- 
section.  anti-vaccination,  and  the  Emmanuel  Movement  are  from 
science,  safety  of  the  public,  and  common  serisaJTTffglllJfieSSr 
of  rattle-snakes_may  be  regarded  as  an  enthusiastic^ Jierpetolo-^ 
gist,  but,  should  he  liberate  his  dangerous  pels  in  <^he  nilf^^ 
of  an  assemblage  of  his  own  kind,  he  would  1)e  looked  upoo^ 
as  anything  but  a  philanthropist. 


International  Journal   of   Ethics.   15:263-86.   April,    1905. 
Abolition   of    Capital   Punishment.     W.   J.    Roberts. 

Let  me  call  attention  to  a  class  of  people  whose  interests 
are  not  often  considered  in  this  connection,  namely,  the  in- 
mates— prisoners  and  officials — of  the  place  in  which  the  ex- 
ecution takes  place.  It  might  easily  befall  an  innocent  or 
highly  refined  person  to  be  confined  to  a  prison  at  such  a  time; 
and  his  feelings  as  well  as  those  of  his  less  fortunate  fellow- 
prisoners  surely  deserve  our  most  earnest  consideration.  These 
people  share  very  slightly,  if  at  all,  in  the  benefits  which  the 
public  is  supposed  to  have  secured  from  the  diminishing  pub- 
licity of  executions;  and  our  objections  acquire  a  tenfold  force 
w^hen  we  protest  that  the  criminal  class,  which  we  desire  to 
make  less  criminal,  and  the  persons  in  charge  of  the  criminal, 
should  not  be  subjected  to  influences  so  degrading  and  ruinous. 

I  need  only  mention  the  obvious  fact  that  the  death  pen- 
alty is  in  great  part  responsible  for  the  fascination  which 
stories  of  crime  and  violence  exercise  over  youthful  and  un- 
disciplined minds.  The  amount  of  crime  produced  by  dis- 
ordered imaginations,  which  have,  through  contemplating  deeds 
of  violence,  become  irresistibly  fascinated  and  obsessed,  is  in- 
calculable. 


88  SELECTED  ARTICLES 

The  Deterrent  Power  of  Punishment  and  of  Capital  Punishment 
in  Particular 

Thackeray  complained  that,  with  a  certain  kind  of  person, 
it  was  no  use  arguing  about  capital  punishment.  "You  may 
talk  to  a  man  for  a  year  upon  the  subject,  and  he  will  always 
reply  to  you,  Tt  is  natural,  and  therefore  it  must  be  done.  Blood 
demands  blood.' " 

We  may  hope  that  this  is  not  an  argument  which  at  the 
present  day  would  give  much  trouble  to  any  thoughtful  per- 
son; and  its  employment  is  usually  confined  to  an  abstract  and 
unscrupulous  controversialist,  when  every  better  argument 
failed  him.  What  chiefly  frightens  many  good  people  from 
the  thought  of  abolishing  capital  punishment  is  an  instinctive 
apprehension  that  the  country  would  immediately  begin  to 
swarm  with  murderers  and  life  would  not  be  safe  for  an  in- 
stant. Death  is  the  only  effective  deterrent,  they  say,  for  a 
certain  class  of  people,  and  the  state  cannot  relax  its  hold  of 
this  weapon.  This  general  abstract  doctrine  is  often  found  to 
co-exist  with  a  willingness  to  intercede  for  any  condemned 
person,  whose  case  is  brought  effectively  under  the  theorist's 
notice,  i^  We  contend  that  the  theory  is  without  foundation,  and 
that  the  benevolent  impulse  to  uplift  the  individual  criminal 
not  least  by  sympathy,  patience,  and  mercy,  provides  the  basis 
for  a  much  better  moral  and  legal  theory.  ' 

I.  As  a  general  principle  of  punishment,  it  is  hap-hazard  and 
illogical.  If  deterrence  be  your  object  and  harshness  be  your 
means,  why  should  the  present  condition  of  the  law,  which  is 
only,  as  regards  murder,  a  matter  of  some  forty  years,  give 
you  such  complete  satisfaction?  There  is  no  reason,  on  this 
theory,  why  the  harshness  of  the  punishment  should  not  be 
augmented  and  the  same  principle  extended  to  other  crimes. 
The  criminal  codes  of  Western  Europe  were  long  dominated 
by  this  principle,  and  they  had  a  fair  opportunity  of  "stamping 
out"  crime  if  it  could  be  done  by  such  means.  The  statistics 
of  crime  in  the  centuries  of  this  regime  are  a  sufficient  comment 
upon  the  claims  of  the  deterrent  principle. 


CAPITAL    PUNISHMENT  89 

2.  Like  the  rest  of  mankind,  criminals  vary  extremely  in 
their  desires  and  fears.  We  very  often  read  of  murderers 
jesting  with  prison  warders  about  "being  swung,"  and  walk- 
ing with  alacrity  to  the  scaffold.  And  what  shall  we  say  of 
the  constant  combination  of  murder  and  suicide,  or  of  murder 
followed  by  the  immediate  self-surrender  of  the  homicide  to 
the  police?  We  even  read  of  some  who  accuse  themselves 
of  a  crime  which  they  never  committed,  or  who  commit  murder 
with  the  deliberate  intention  of  confessing,  and  obtaining  through 
the  scaffold  a  release  from  a  disordered  and  miserable 
life.  In  general,  we  ought  to  learn,  if  only  from  the  increasing 
prevalence  of  suicide,  that  it  is  idle  to  think  of  frightening 
desperate  men  with  the  threat  of  death;  and  that  men  need 
much  rather  to  be  encouraged  to  live  bravely  and  nobly,  in 
spite  of  their  past,  than  to  be  cowed  by  spectacles  and  narra- 
tives of  deliberate  and  professional  homicide. 

3.  A  close  acquaintance  with  our  own  hearts  and  with  actual 
cases  of  crime  shows  us  that  the  thought  of  the  punishment 
is  either  not  present  at  all,  when  a  powerful  impulse  leads  to 
the  commission  of  a  violent  act ;  or  that  it  is  commonly  over- 
whelmed by  a  conviction  of  the  certainty  of  escape.  And,  by 
the  nature  of  the  case,  fear  of  capital  punishment  cannot  pre- 
vent sudden  and  strictly  unintentional  acts  of  homicide,  which, 
according  to  circumstances,  are  liable  to  be  treated  by  our 
courts  as  murder. 

4.  Even  if  a  large  number  of  acts  of  violence  were  pre- 
vented by  the  fear  of  the  death  penalty,  we  might  well  doubt 
whether  it  would  not  be  at  the  cost  of  producing  a  much  larger 
number  of  such  acts :  whether  mercy  would  not  immediately, 
as  well  as  in  the  long  run,  prevent  more  murders  than  are  now 
prevented  by  severity.  We  are  here  in  the  region  of  moral 
probability  where  moral  disposition  and  bias  determine  our 
judgments;  and  a  man  whose  benevolent  and  merciful  moral, 
principles  extend  to  the  tempted  and  the  erring  will  not  doubt 
for  a  moment  from  which  of  the  two,  harshness  or  clemency, 
he  may  expect  the  most  favorable  results. 


90  SELECTED  ARTICLES 

5.  Past  experience  does  in  no  wise  belie  the  anticipations 
of  our  moral  sentiments.  Statistics  cannot,  from  the  complex 
character  of  this  class  of  phenomena,  generally  speaking,  supply 
us  with  convincing  proofs  of  our  theories.  But  so  far  as  they 
go  they  justify  us  in  making  the  following  inferences: 

(i.)  The  increasing  humaneness  of  the  penal  codes  of 
Western  Europe  has  not  led  to  an  increase'  of  those  crimes  in 
respect  of  which  the  severity  of  the  punishment  has  been  relaxed. 

(2.)  In  particular,  certain  homicidal  acts,  formerly  pun- 
ished as  murder,  have  not  increased  in  frequency  since  they  have 
been  treated  more  leniently.  In  those  cases,  even  if  an  increase 
in  the  crime  took  place,  few,  if  any,  would  suggest  a  return 
to  the  old  policy  of  severity. 

(3.)  The  experience  of  those  countries  where  capital  pun- 
ishment has  been  expressly  or  in  effect  abolished  is,  in  the  main, 
favorable  to  abolition.  The  Protestant  Cantons  of  Switzer- 
land, Portugal,  Finland,  Norway,  Denmark,  and  Scotland, 
for  example,  do  not  compare  unfavorably,  to  say  the  least, 
as  regards  statistics  of  violent  crime,  with  Spain,  France,  Ger- 
many, England,  and  Ireland. 

(4.)  The  abolition  of  capital  punishment  does  not,  of  itself, 
secure  a  community  against  outbreaks  of  violent  crime.  But  it 
is  equally  obvious  that  its  retention  does  not  protect  either: 
homicidal  crime  is  increasing,  not  diminishing,  in  England, 
France,  and  Germany;  and  the  last  few  years  are  among  the 
worst  on  record. 

(5.)  Even  comparative  failure  would  not  discourage  a  com- 
munity which  had  deliberately  committed  itself  to  a  merciful 
and  reformative  policy;  it  would  only  be  an  incentive  to  apply 
the  new  principle  more  amply  and  consistently  in  all  depart- 
ments of  criminal  law  and  administration,  and  of  individual 
and  national  life. 

George  Eliot,  to  whom  the  principle  of  gentleness  towards 
the  erring  is  so  deeply  indebted,  allowed  herself,  in  a  reaction- 
ary moment,  to  express  a  fear  that  much  thinking  over  the 
causes  of  crime  might  make  us  unfit  to  punish  the  criminal.  We 
face  the  reproach  which  such  words  commonly  convey,  without 


CAPITAL    PUNISHMENT  91 

fear  or  shame.  We  believe  that  it  is  only  by  thinking  wisely, 
patiently,  and  anxiousjy  of  the  causes  of  crime,  and  the  real 
character  of  the  criminal,  that  the  deliverance  of  society  from 
evil  passion  and  violence  can  come.  We  believe,  too,  that  much 
thinking  or  even  a  little  thinking  would  make  much  of  our 
punishing  seem  inhuman  and  preposterous ;  and  even  if  the 
policy  which  our  thinking  brought  us  to  adopt  should  appear, 
in  many  if  not  in  all  cases,  to  be  anything  but  "punishment," 
we  would  joyfully  abandon  the  name  as  well  as  the  thing.  We 
are  confident  that  the  victory  over  evil  in  others  can  be  won 
only  as  we  eliminate  evil  in  ourselves :  especially  as  we  be- 
come conscious  of  an  ever-increasing  debt  of  gratitude  to  those 
who  have  forgiven  us  and  of  responsibility  towards  those  whom 
we  must  forgive ;  as  we  realize  that  cruel  and  degrading  acts 
do  not  cease  to  be  our  own,  because  we  do  not  like  reading 
about  them,  or  would  rather  have  nothing  to  do  with  the  agents 
whom  we  hire  to  perform  them ;  as  we  believe  more  and  more 
fully  that  the  mercy  of  man  to  his  fellow  is  able  and  mighty 
to  heal  and  to  save. 

International  Journal  of  Ethics.  17:290-301.  April,  1907. 

Reform  and  the  Death  Penalty.     Carl  Heath. 

Consider  the  hanging  of  a  woman.  It  may  be  supposed 
that  every  man  with  a  sense  of  justice  and  unbiased  by  sex 
antagonism,  must  feel  there  is  little  moral  excuse  and  much 
downright  iniquity  and  stupid  cruelty  in  such  a  proceeding. 
For  in  the  first  place,  as  to  its  justice,  it  is  to  be  noted  that 
no  woman  from  first  to  last  is  allowed  a  say  in  the  matter: 
the  arresting,  the  trying  and  the  judging,  the  passing  of  the 
sentence,  the  refusal  to  recommend  mercy,  the  chaplain's  cere- 
monial, the  hanging  and  the  burying,  each  item  in  the  via  dolo- 
rosa of  the  woman  who  slays  her  fellow-creature,  is  the  deed 
of  a  man.  And  is  not  the  very  excuse  given  for  the  refusing 
to  women  a  part  in  the  judging  of  crime,  vi:^.,  that  women  as 
compared  with   men  are,   by  their  very  sex  temperament,   and 


/ 


92  SELECTED  ARTICLES 

physiological  construction,  less  able  to  keep  that  evenness  of 
mind  from  day  to  day  and  from  week  to  week  which  it  is 
essential  for  a  judge  to  possess — is  not  that  very  fact,  if  true, 
one  that  would  justify  a  differential  treatment  of  the  crime 
of  murder  by  men  and  by  women? 

But  it  is  just  when  brought  down  to  this  simple  ethical  basis 
that  capital  punishment  completely  fails.  It  is  true  enough 
that  many  of  those  who  are  hanged  are  emotionally  acted  upon 
by  chaplains  and  others,  and  said  to  confess  their  crime  and 
repent ;  and  we  hear  from  time  to  time  of  murderers  dying 
confident  of  being  shortly  in  heaven.  But  what  evidence  have 
we  of,  and  in  fact  what  time  or  environment  is  there  for,  the 
development  of  any  real  consciousness  of  the  wrong  done  by 
the  murderer  against  the  community?  "  And  obvioush'  death 
provides  no  outlet  for  the  undoing  of  the  wrong.  /^Such  a 
consciousness  would,  in  the  majority  of  murder  cases,  be  the 
product  of  the  continuous  pressure  of  reformative  elements, 
educative,  social  and  moral,  such  as  the  right  kind  of  penal 
institution  might  be  expected  to  offer.  And  out  of  such  a  con- 
sciousness would  grow  an  effective  desire  for  reform,  and  thence 
a  healthy  condition  of  mind  and  soul  that  would  restore  the 
criminal  to  the  community.  "\ 

International  Journal  of  Ethics.  18:409-17.  July,  1908. 
Treatment  of  Homicidal  Crimes.     Carl  Heath. 

That  the  penal  codes  of  civilized  nations  are  invariably 
behind  the  moral  sentiments  and  humane  tendencies,  if  not  of 
all,  of  the  greater  part  of  the  peoples  of  those  nations,  is  perhaps 
a  natural  condition  of  things.  Any  comparative  study  of  the 
criminal  laws  of  various  countries  does  but  serve  to  emphasize 
the  fact.  The  dread  hand  of  the  law  lies  heavily  upon  us. 
and  considered  from  an  ethical  standpoint,  particularly  the 
criminal  law. 

What,  then,  it  may  be  asked,  should  be  the  treatment  ac- 
corded to   the  homicidal  criminal?     Well,  in   the   first  place,   it 


CAPITAL    PUNISHMENT  93 

must  be  treatment  and  not  mere  punishment  for  crime.  And  in 
the  second  place,  this  treatment  must  be  based  on  a  much  more 
elastic  interpretation  of  the  legal  definition  of  insanity.  We 
must  recognize  that  the  thoroughly  normal  man,  the  sane  man, 
is  much  rarer  than  we  try  to  believe.  Thirdly,  we  need  an 
extended  recognition  of  social  responsibility.  With  the  advance 
in  social  consciousness  we  shall  come  to  see  that  "society  itself 
is  the  primary  cause  of  murder,"  as  A.  R.  Wallace  tells  us. 
And  when  this  is  recognized,  and  treatment  replaces  punish- 
ment, much  more  intelligent,  trained  and  sympathetic  staffs 
must  replace  our  present  prison  warders,  so  that  such  treat- 
ment be  administered  in  a  manner  at  once  wisely  firm  and  in- 
telligently humane,  I  do  not  pretend  to  dogmatize  as  to  the 
content  of  such  treatment  system,  but  often  in  these  cases  the 
simplest  remedies  are  those  most  needed  and  most  lacking  in 
prison  life — humane  and  healthy  diet,  open  air,  stimulating 
occupation,  sympathetic  teaching  and  wise  control — all  these 
factors,  the  antitheses  of  those  provided  by  our  horrible  town 
life  and  often  village  life  also.  These  are  the  remedies  for  the 
diseased  homicide  with  his  heavy  mental  cloud. 

McClure.   24: 163-71.   December,   1904. 

Increase  of  Lawlessness  in  the  United  States.     S.  S.  ]McClure. 

I  print  herewith  comments  on  the  prevalence  of  crime  and 
lawlessness  in  the  United  States,  taken  almost  at  random  from 
representative  and  serious  newspapers,  and  from  the  published 
statements  of  judges  and  citizens.  I  also  print  the  statistics 
of  murders  and  homicides  in  the  United  States  which  have  been 
collected  for  twenty- three  years  by  the  Chicago  Tribune.  These 
statistics  confirm  the  general  impression  regarding  the  rapid 
and  alarming  increase  of  lawlessness  in  our  country.  At  present 
there  are  four  and  a  half  times  as  many  murderers  and  homi- 
cides for  each  million  of  people  in  the  United  States  as  there 
were  in   1881. 


94  SELECTED  ARTICLES 

The  Increase  of  Homicide 
{A  Judge's  Charge   to  a  Jury) 

In  his  charge  to  the  grand  jury  at  Montgomery,  Ala.,  re- 
cently, Judge  Thomas  uttered  strong  warning  against  the  in- 
crease in  the  number  of  homicides  in  this  country  and  empha- 
sized the  necessity  for  stricter  enforceme'nt  of  the  law,  es- 
pecially in  the  punishment  of  crimes  of  violence.  He  quoted 
figures  to  show  that  the  number  of  homicides  in  the  United 
States  for  three  years  was  one-third  larger  than. either  the  to- 
tal number  of  persons  killed  upon  the  American  railroads  in 
the  same  period  or  the  total  losses  of  the  British  army  in  the 
war  in  South  Africa.  The  exact  figures  given  by  Judge  Thomas 
were:  Killed  on  railroads,  21,847;  British  loss  in  Boer  war, 
22,000;  homicides  in  the  United  States,  31,395. 

On    Southern    Conditions — Man-killing    in    the    South 
{Editorial  in  the  Charleston  News  and  Courier) 

"The  Louisville  Herald  printed  some  days  ago  'a  partial 
record*  of  the  crimes  of  personal  violence  committed  in  Breathitt 
County  in  recent  years.  The  'partial'  list  shows  that  during  the 
period  named  there  were  twenty-eight  assassinations,  or  at- 
tempted assassinations,  in  that  one  county  of  the  state  of  Ken- 
tucky, and  that  among  the  persons  assassinated  were  three  wom- 
en. Last  week  one  of  the  judges  in  Georgia  declared  from 
the  bench  that  more  homicides  were  committed  in  that  state 
than  in  the  whole  British  Empire.  Hefe  one  person  in  a  hundred 
is  convicted  and  punished,  while  in  England  one  in  three  is  made 
to  suffer. 

"In  South  CaroHna,  as  we  have  noted,  the  safest  crime 
is  the  crime  of  taking  human  life.  The  conditions  are  the 
same  in  almost  every  Southern  state.  Murder  and  violence 
are  the  distinguishing  marks  of  our  present-day  civilization. 
We  do  not  enforce  the  law.  We  say  by  statute  that  murder 
must  be  punished  by  death,  and  murder  is  rarely  punished  by 
death,  or  rarely  punished  in  any  other  way  in  this  state,  and 
in  any  of  the   Southern  states,  except  where  the  murderer  is 


CAPITAL    PUNISHMENT  95 

colored,  or  is  poor  and  without  influence.  Now,  this  state  of 
affairs  cannot  last  forever.  We  have  grown  so  accustomed 
to  the  failure  of  justice  in  cases  where  human  life  is  taken 
by  violence  that  we  excuse  one  failure  and  another  until  it  will 
become  a  habit  and  the  strong  shall  prevail  over  the  weak, 
and  the  man  who  slays  his  brother  shall  be  regarded  as  the  in- 
carnation of  power." 

Statistics  of  Murders  and  Homicides  in  the   United  States 

Below  are  summaries  of  the  statistics  of  murders  and  homi- 
cides collected  by  the  Chicago  Tribune  since  1881,  to  which  I 
have  already  referred.  The  statement  of  the  number  of  mur- 
ders and  homicides  includes  all  deaths  by  violence  reported  in 
the  newspapers  of  the  various  states  and  territories.  These 
deaths  were  the  results  of  quarrels,  liquor,  jealousy,  love  affairs, 
domestic  troubles,  robberies,  resisting  arrest,  infanticide,  in- 
sanity, self-defense,  riots,  strikes,  outrages  and  unknown  causes. 

To  more  graphically  convey  the  meaning  of  these  figures 
for  each  year  I  have  had  them  compared  for  Table  I  with  the 
estimated  population  of  the  United  States  for  each  year  since 
1881.  These  comparisons  reveal  some  interesting  and  important 
facts.  For  example,  in  1881  the  ratio  of  murders  and  homicides 
to  population  is  one  to  40,534  inhabitants,  while  in  1902  it  was 
one  murder  or  homicide  to  8,955  inhabitants.  It  will  be  seen 
that  during  the  years  of  financial  depression  immediately  fol- 
lowing the  year  of  the  panic,  1893,  murders  and  homicides  were 
more  common  than  at  any  time  before  or  since.  In  1895  the 
ratio  was  one  murder  or  homicide  to  6,575  inhabitants.  That 
year's  record  is  the  worst  in  the  history  of  the  country.  In 
1899  the  record  was  better,  but  since  that  time  it  has  been 
gradually  growing  worse. 


96 


SELECTED  ARTICLES 


Table  I — Number  of  Murders  and  Homicides  ix  the  United 

States  Each  Ye.\r  Since  i88i,  Compared  with 

the  Population 

(From   statistics   compiled  by  the   Chicago    Tribune) 


2.S  * 

St;  c_«  4>.t: 

i| 

i^ 

2Si 

SS 

he's 

V   CO 

«j=  5  «  e«<n 

<u<«  « 

"O  ti 

c  " 

"Ss^ 

■2.--^«  2  « 

p."c  • 

4;  i) 

^^^ 

^B 

^c 

Year 

3  IJ  08 

S|55 

=  6l 
1=1 
111 

Number  of  Mu 
and  Homicides 
would     have 
Committed  if 
per  Million   P 
had  continued 
was  in  1881 

Ill 

Number  of  Mu 
and    Homicide 
each  Million  of 
pie 

II 

1881 

1.266 

1266 

51.316.000 

40.534 

24.7 

605 

90 

1882 

1,467 

1295 

52.495.000 

35.784 

27.9 

734 

121 

1883 

1.697 

1324 

53.693.000 

31,640 

31.6 

727 

107 

1884 

1.465 

1354 

54.911.000 

37.478 

26.7 

842 

123 

1885 

1,808 

1384 

56,148,000 

31.055 

32.2 

978 

108 

1886 

1.499 

1411 

57.404.000 

38.295 

26.1 

914 

83 

1887 

2,335 

1447 

58.680.000 

25.130 

39.8 

1387 

79 

1888 

2.184 

1479 

59.972.000 

27.460 

26.4 

1487 

87 

1889 

3,567 

1512 

61.289.000 

17.123 

58.2 

2224 

98 

1890 

4.290 

1545 

62,622.250 

14,597 

68. 5 

2640 

102 

1891 

5,9% 

1577 

63.947.000 

10,826 

92  4 

3^31 

123 

1892 

6,791 

1608 

65.191,000 

9.599 

104.2 

3860 

107 

1893 

6  615 

1639 

66,456,000 

10.046 

99.5 

4436 

126 

1894 

9.800 

1671 

67,740,000 

6.912 

144.7 

4912 

132 

1895 

10.500 

1703 

69,043,000 

6.575 

152.2 

5759 

132 

1896 

10.652 

1736 

70,365,000 

6.658 

151.3 

6530 

122 

1897 

9.520 

1768 

71,704,000 

7.532 

132  8 

6600 

128 

1898 

7,840 

1802 

73,060.000 

9.319 

107.2 

5920 

109 

1899 

6,225 

1836 

74,433,000 

11.957 

83.6 

5340 

131 

1900 

8,275 

1882 

76,295,000 

9.219  . 

108.4 

6755 

117 

1901 

7.852 

1918 

77,754.000 
79.117.00^ 

9,902 

100.9 

7845 

118 

1902 

8.834 

1952 

8,955 

111.7 

8132 

144 

1903 

8.976 

112 

8597 

124 

Total 

129.464 

35J09 

82.555 

2611 

Table  II  presents  the  causes  of  murders  and  homicides  hi 
the  United  States  for  the  years  1894- 1900.  These  figures  are 
all  taken  from  statistics  compiled  by  the  Chicago  Tribune.  One 
fact  of  great  importance  developed  by  this  table  is  that  half 
of  the  murders  and  homicides  in  this  country  result  from  quar- 
rels and  brawls.  This  fact  should  be  kept  in  mind  when  ref- 
erence is  made  below  to  the  general  failure  of  the  police  to 
preserve  order  and  to  prevent  crime. 


CAPITAL    PUNISHMENT 


97 


Table  II— Causes  of  Murders  and  Homicides  in  the  United 
States,  1894- 1900 

(From  statistics  compiled  by  the  Chicago  Tribune) 


Year 

0) 

3 

2 

C  3 

15 

C 

c 

1 

0 
3 

be 

'0 
c 

(U 

i 

li 

s 

a 

Q 
S3 

1 

3 

0 

>> 

'S 

.,  f 

0 

p 

^ 

OQ 

« 

204 

C/2 

179 

0 
49 

25 

126 

^ 

1894 

4536 

1856 

812 

776 

525 

340 

273 

9.800 

1895 

4813 

2466 

1136  684 

441 

269  232 

159 

18 

104  49 

28 

101 

10,500 

1896 

5530 

3561 

401:  359 

200 

300 

52 

100 

10 

48  28 

10 

253 

10.652 

1897 

4638 

2654 

376  518 

387 

321 

195 

128 

49 

97,  43 

21 

93 

9.520 

1898 

3S67 

2697 

205  207 

222 

248 

147 

82 

22 

33 

5 

25 

80 

7.840 

1899 

3309 

1699 

173:  212 

296 

182 

114 

83 

29 

31 

6 

10 

81 

6,225 

1900 

4823 

2187 

210;  289 

239 
2310 

159 
1819 

83 
1096 

85 
841 

58 
365 

28 
440 

8 
188 

13 
132 

93 
827 

8,275 

Total 

31,516 

17,120 

3313 

• 

2845 

62,812 

Month.   65:  168-79.   February,   1889. 

Shall  We  Abolish  the  Death  Penalty  for  Murder? 
W.  C.  Maude. 

We   will   now   state   our   reasons   for   advocating  the   reten- 
tion of  the  death  penalty  as  a  punishment  for  murder. 

One  great  reason  for  retaining  capital  punishment  for  the 
worst  crimes  (and  scarcely  any  one  in  England  would  advo- 
cate any  other  for  such  men,  say,  as  the  Chicago  anarchists, 
or  the  Whitechapel  murderer,  if  he  is  ever  caught  and  not 
found  to  be  insane)  and,  indeed,  we  think  for  all  cases  of  de- 
liberate murder,  is  the  almost  insuperable  difficulty  of  finding 
an  adequate  substitute. 
^  Life  servitude  is  never  carried  out  in  England,  sentence  be- 
ing revised  at  the  end  of  twenty  years.  Colonel  Henderson 
before  the  Commission  said  it  would  take  almost  a  century 
to  get  criminals  to  believe  in  its  being  carried  out,  and  if  it 
were   carried   into   effect,   prisoners    with   no   hope  Would   have 


98  SELECTED  ARTICLES 

to  be  treated  either  as  lunatics  and  made  comfortable,  or  as  wild 
beasts  at  the  Zoological  ^  Gardens.  "We  have  men  now,"  he 
continued,  "who  are  very  little  removed  from  wild  beasts.  I 
do  not  say  they  are  mad,  but  they  can  never  be  approached 
by  one  man  at  a  time;  they  are  none  the  less  obliged  to  be 
treated  like  wild  beasts,  and  the  warder  always  goes  with, 
as  you  may  say,  his  life  in  his  hand." 

This  point  has  very  recently  been  treated  by  Mr.  William 
Tallack,  the  secretary  of  the  Howard  Association.  He  is  a  man 
of  the  greatest  experience  in  the  matter,  having  devoted  over 
a  quarter  of  a  century  to  the  investigation  of  all  the  branches 
of  the  great  subjects  of  crime  prevention  and  punishment.  He 
gives  it  as  his  opinion  that  life  servitude  is  impracticable,  and  sug- 
gests as-^  substitute,  a  term  of  twenty  years'  penal  servitude 
with  a  subsequent  period  of  supervision,  in  all  but  the  most 
outrageous  and  alarming  cases,  for  which  he  advocates  the 
death  penalty.  We  do  not  think  that  such  a  punishment  for 
intentional  murder  is  sufficient  on  any  ground.  In  the  first 
place,  we  should_Jia.vje-to_10-Wer  J:he  wlyDk^ 
in__proportiqn,  which  would  hardly  be  advisable.  Then  it  p^ii^i— 
not  be  forgotten  that  it  is  a  rule  without  exception,  that  the 
rngment  the  penalty  (either  inflicted  by  the  law-  or  by  public 
opinion)  is  lowered,  the  popular  detestation  of  the  offence  is 
proportionally  lessened.  Lastly,  it  appears  to  us  that  the  moral 
aspect  of  the  matter  requires  greater  severity.  In  order  to 
show  this,  we  must  inquire  what  are  the  objects  of  punishment? 
And  in  answer  we  will  accept  perhaps  the  latest  important 
dicta  on  the  subject:    those  of  Sir  Edward  Fry,  L.  J. 

He  considers  the  ends  of  punishment  to  be  reformation, 
repression,  and  example,  but  looks  upon  these  as  secondary 
only  to  the  great  end  which  he  calls  the  moral  root  of  the 
whole  doctrine,  namely,  association  in  some  degree,  of  svdiec^ 
ing  with  sin,  in  order  to  which  there  is  a  duty  laid  upon^s, 
of  making  this  relationship  as  real,  actual  and  exact  in  pro- 
portion as  possible.  His  conclusions  are  that  the  deepest  ground 
of  punishment  is  this  purely  moral  one ;  that  there  are  other 
and  independent  reasons   why  society  ought  to   inflict  punish- 


CAPITAL    PUNISHMENT  99 

ment;  that  the  measure  of  punishment  may  vary  with  the  dif- 
ferent reasons  for  its  infliction;  and  that  the  highest  of  the 
measures  of  punishment  for  any  given  offence  is  that  with 
which  society  ought  to  visit  it. 

Now  we  think  that  the  death  penalty  when  inflicted  for 
murder  pre-eminently  answers  these  four  ends  of  punishment. 
The  immediate  prospect  of  death  certainly  ought  to  work  a 
reform  in  the  condemned  man's  spiritual  condition.  The  penalty 
itself  obviously  prevents  further  crime  on  his  part.  And  we 
feel  certain  that  the  example  would  have  great  effect  upon 
others,  if  the  legal  definitions  of  murder  were  so  conformed 
to  the  popular  idea  of  the  crime,  as  to  make  a  verdict  and 
execution  certain  in  clear  cases  of  deliberate  murder.  We 
submit  that  when  death  was  directly  or  indirectly  intended  or 
looked  upon  as  probable  by  the  perpetrator  of  the  deed  which 
caused  the  death,  although  of  a  different  person  from  the  one 
aimed  at,  morally  the  crime  would  be  murder;  but  we  doubt 
whether  this  would  not  be  too  wide  for  the  British  jury,  and 
probably  it  would  have  to  be  confined  now-a-days  to  cases  of 
direct  intention  to  cause  death,  coupled  with  an  act  which  did 
cause  death  to  some  one,  whether  the  person  aimed  at  or  not. 
We  think  even  with  some  such  definition  as  this,  some  pro- 
vision would  have  to  be  made  to  enable  a  jury  to  find  as  a  fact 
that  the  act  was  done  through  some  violent  and  sudden  tempta- 
tion, and  to  give  a  judge,  under  such  circumstances,  a  discre- 
tion to  lower  the  penalty.  Perhaps,  also,  the  question  of  a 
provocation  might  be  treated  in  this  way  instead  of  as  it  is 
now,  and  the  limits  of  provocation  as  it  affects  this  crime  might 
be  enlarged.  These  suggestions,  however,  are  thrown  out  with 
the  greatest  diffidence,  having  regard  to  the  difficulties  with 
which  the  subject  is  beset;  but  our  meaning  is  that  murder  in 
law  should  be  made  as  much  as  possible  like  murder  in  com- 
mon parlance,  and  that  a  discretion  should  be  given  to  the  judge 
in  passing  sentence,  where,  though  the  crime  may  clearly  be 
murder,  yet  there  exist  real,  and  not  merely  extenuating  cir- 
cumstances in  the  French  meaning. 
^    Finally  the  punishment  of  death,  more  than  any  other  which 

■  \ 


loo  SELECTED  ARTICLES 

could  be  inflicted  for  murder,  associates  the  greatest  offence 
with  the  greatest,  or  at  any  rate,  the  Highest  form  of  suffer- 
ui^lTnd  thus  realizes  the  exalted  standard  at  which  the  learned 
Lord  Justice  was  aiming  when  he  said,  "In  a  word,  you  can 
never  separate  the  idea  of  right  and  wrong  from  the  idea  of 
punishment  without  an  infinite  degradation  .of  the  latter  con- 
ception. Punishment  is  a  part  of  justice  if  it  is  anything  of 
moral  worth;  and  I  cannot  bring  myself  to  think  of  justice 
without  regard  to  right  and  wrong,  without  regard  to  the  ut- 
terances of  the  human  conscience,  without  a  thought  behind 
all  of  an  infinite  and  perfect  Judge.  To  make  justice  a  mere 
term  for  the  enforcement  of  laws  which  have  no  moral  colour, 
and  rest  only  on  the  balance  of  the  scales  of  pain  and  pleas- 
ure, is  "to  rob  it,  to  my  mind,  not  only  of  all  its  dignity,  but  of 
all  its  meaning." 

Nation.  i6:  193-4.  March  20,  1873. 

Substitute  for  Hanging. 

*' A  life-sentencfe  too,  it  ought  to  be  said,  would  have  no  great 
advantage  on  the  score  of  humanity  over  a  death  j)enalty^    If^ 
rr  is   certain,   or  if   the   criminal   can   get   to  believe   that   it   is, 
it  islfxcibJe.     On,jllk..i)toint  the  reports  tell  a  dismal  tale.  .^^J^^T^ 
sanity  is  fifteen  times  more  prevalent  among  life  convicts  than 
_among  the  others.     Death  or  Jusanity,  it  is  estimated,  disposes, 
jn   ff>nr  yi^ars   of   27  per  cent ^QUliieLi:a.S£s — K  vou  put   lOQ, 
men    in    jail    for    life,    and    took    away    all   hope,    the    statistics 
warrant  lis  .in  believing  that  in  fifteen  years   theje  would   not 
be  a  man  of  them  left ;   so  that  our  much   sought  for  comrnu^ 
tation,  if  it  were  really  what  it  professes  to  be,  would  be  the 
substitution  of  death  by  slow  torture,  for  death  at  one  stroke. 


eir 
oil 


CAPITAL    PUNISHMENT 

New  Review.  11:190-200.  August,   1894. 

In  Praise  of  Hanging.     W,  S.  Lilly. 

Secondary  ends  of  punishment,  as  I  account  of  it,  are  that  it/ 
should  deter  others^from  crime   and    shoidd   reform  the   criniiY 
nal.     And   in   view   of   both    these    ends   the   argument    for    the*. 
'cTeath  penalty,  in  cases  of  wilful  murder,  seems  overwhelming.j 
^^^th  is  the  king  of_terrors.     Human   experience  proves  that\ 
it  is  the  supreme  deterrent.     Signor  Zanardelli,  in  the  document* 
from    which    I    have   quoted,    adduces    three    arguments    against 
this   view.     First,    he   quotes   a   dictum   of    Seneca,   that   "many 
hold  death  in  contempt,  regarding  it  as  a  rest  from  evils,  while 
they  are  much   afraid   of   imprisonment."     But  assuredly  mur- 
derers   are    seldom    of    this    philosophic   temperament.      Cruelty 
and    cowardice    generally    go    together.      The    most    reckless    ifi 
deaTiiig   with   the   lives   of   others   are   the   most   chary   of  their 
own.     Signor  Zanardelli's  next  argument  is  that  the  most  atro- 
cious  criminals    do   not   reflect   on  the   prol^able   punishment 
their  crime,   but   act   recklessly,   on   nncontroljable   impulse    (con 
impeto    irrefrenabile)     and    would    sacrilice    the    universe    to^  a 
sensation.     To  which  it  may  be  replied  that  the  worst  murders 
"are  rrdTThose  committed  in  the  heat  of  passion,  but  those. per- 
petrated in  cold  blood;  and  that,  in  any  case,  the  vision  of  the 
scaffold_or    the   gallows    is    more    fitted    than    anything    else    to 
check  homicidal   recklessness   and  to  control  homicidal   impulse. 
"T'lEt^fl't  care   what    I   get   so   long  as   I   don't   swing,"   was    the 
expression    of    a    recent    assassin,    who    unfortunately,    did    not 
"swing."     The  sentiment  is  common  to  men  of  blood.     Lastly, 
Signor  Zanardelli  urges  that  the   ferocious  punishments  of  old 
times,  so  far  from  preventing  serious  crimes,  made  them  more 
frequent.      But    that    unjust   punishment    failed   to    deter,    is    no 
argument  against  the   deterrent  ejffect_ojrjust^p~t^^ 
which  may  be  added  that  the  consequences  of  the  abolition  of 
the  death  penalty  in  Italy  are  not  reassuring.     It  is  stated  that 
there  are  now  in  that  country  between  three  and  four  thousand 
convicts  undergoing  sentences  of  hfe  imprisonment  for  murder — 
sentences  which  are  never  commuted. 
I 


] 


lo-  ,  ,  JSEiiE.CTED  ARTICLES 

It  would  have  been  far  better  for  these  unhappy  men  them- 
selves, in  the  vast  majority  of  cases,  that  they  should  have 
suffered  the  supreme  penalty.  Mr.  Tallack,^  in  his  work  on 
"Penological  and  Preventiv-e  Principles,"  well  points  out  that' 
"death  itseJXjiia3tJie..irieiix.compared  with  thejprolpiTged  injury 
in^fttcTeS'upon  the  spiritual  and  mental  powers,^  by  means  of  the 
hopeless  misery  of  the  solitary  cell,  on  the  one  hand,  or  by  the 
corruptions  of  tilthy  and  blaspheming  convict  gangs  on  the  other. 
A  process  thus  continued  may  ultirnately  be  as  real  an  execu- 
tion of  death,  but  by  slow  operation,  as  the  more  visible  and 
instantaneous  deprivation  of  life.  .  .  .  Thp  Italians  in  their  hatred 
of  one  form  of  capital  punishment  have  merely  substituted 
another  and  a  worse  form."  This  is  perfectly  true.  A  sentence 
of  life  imprisonment  is  merely  a  more  cruel  and  more  cowardly 
mode  of  inflicting  the  death  penalty.  Hence,  perhaps,  the  favor 
it  has  found  with  the  Italian  people,  as  pandering  to  their 
characteristic  vices.  It  is  also,  in  the  vast  majority  of  cases, 
a  sentence  of  moral  and  spiritual  death.  There  can  be  no 
question  whatever  that  the  most  hopeful  means  of  working  the 
reformation  of  a  murderer — and  by  reformation  I  mean  the 
conversion  of  his  will  from  bad  to  good — is  supplied  by  the 
certainty  of  his  impending  execution.  However  seared  his 
conscience,  however  atrophied  his  moral  sense,  however  blurred 
his  vision  of  judgment  to  come,  this  certainty  often  quickens 
him  into  new  spiritual  life  and  works,  as  Schopenhauer  ex- 
presses it,  "a  great  and  rapid  change  in  his  inmost  being."  "When 
[condemned  criminals]  have  entirely  lost  hope,"  this  keen  ob- 
server of  human  nature  adds,  "they  show  actual  goodness  and 
purity  of  disposition,  true  abhorrence  of  committing  any  deed 
in  the  least  degree  bad  or  iJinkind;  they  forgive  their  enemies, 
.  .  .  and  die  gladly,  peaceably  and  happily.  To  them,  in  the 
extremity  of  their  anguish,  the  last  secret  of  life  has  revealed 
itself."    They  obtain  "a  purification  through  suffering." 


t 


CAPITAL    PUNISHMENT  103 

North  American  Review.  133:  534-59.  December,  1881. 

Death  Penalty.     George  B.  Cheever,  Samuel  Hand  and 

Wendell  Phillips. 

Rev.  Dr.  Cheever. 

The  basis  of  argument  for  the  death  penalty  againstmurder  is 
found,  along  with  the  reason  given  for  it,  in  Gen,  v.  6:  "Whoso. 
sfip^de.th  man^  hlnnrJ,  Uy  fPfin  Shall  fajs  blood  be  sh^(^ !  fp;-..in 
thr  imTig-"  "'  ^"^  "^^^^  h^  pan-"  Nothing  is  plainer,  by  con- 
sent of  the  most  accurate  critics  and  scholars,  than  the  trans- 
lation and  interpretation  of  this  sentence,  i.  The  Creator  is 
its  author.  2.  It  is  his  benevolent  statute  for  man's  protection 
against  the  violence  of  man,  because  man  is  made  in  the  image 
of  God.  3.  It  being  an  acknowledged  legal  axiom  that  a  law 
is  in  force  while  the  reason  for  it  remains,  its  universal  and 
perpetual  obligations  are  demonstrated.  4.  The  origin,  institu- 
tion, sanction,  and  right  of  human  governments  with  penal  in- 
flictions are  here  determined  by  authority  of  the  Creator,  and 
not  by  any  imagined  compacts  of  mankind.  5.  The  nature  and 
requisitions  of  justice,  righteousness,  equity,  duty,  expediency 
are  in  the  terms  of  this  legislation.  The  social  obligations  of 
mankind,  and  all  governmental  responsibilities,  being  referred 
exclusively  to  the  will  and  word  of  the  Creator,  and  the  dictate 
of  a  conscience  toward  him,  there  is  no  other  possible  safeguard 
from  men's  evil  passions.  6.  The  grasp  of  this  law — thou  shalt 
love  thy  fellow-creature,  in  God's  image,  as  thyself — is  upon 
all  human  interests,  temporal  and  eternal,  as  revealed  by  God. 
Obedience  to  it  would  insure  the  highest  and  most  perfect  pro- 
tection of  all  races  in  virtue  and  happiness.  It  is  the  very 
beginning  of  God's  humane  legislation  for  the  new  world,  after 
a  thousand  years'  demonstration  of  incurable  hereditary  de- 
pravity in  the  old,  and  the  consequent  perversion  and  abuse  of 
God's  lenity  toward  Cain,  filling  the  earth  with  violence.  7. 
Every  state,  being  a  trustee  for  God  and  the  people,  is  bound 
to  see  to  it  that  the  people  for  whom  God's  whole  law  is  pro- 
mulgated are  taught  these  truths  with  the  consequent   sacred- 


104  SELECTED  ARTICLES 

ness  of  law  and  conscience  toward  God.  were  it  only  for  the 
security  of  men's  households  and  their  own  lives.  If  God's 
covenant  with  mankind  had  been  kept  conscientiously  by  mankind, 
there  never  would  have  been  another  murder  on  earth  from  the 
time  of  the  deluge  to  this  day.  nor  even  a  religious  persecutor. 
For  God  that  made  the  world  hath  made  of  one  blood  all  na- 
tions of  men,  and  hath  determined  the  times  and  bounds  of  their 
habitation,  with  this  intent,  that  they  should  seek  after  God,  and 
worship  him  in  freedom,  as  being  his  offspring,  who  giveth 
to  all  life,  and  breath,  and  all  things.  And  the  powers  that  be 
are  ordained  of  God,  whose  minister  in  an  earthly  government, 
prophetic  of  the  divine,  beareth  not  the  sword  in  vain.  8.  The 
death  penalty  was  to  be  restricted  to  the  crime  of  murder,  and 
thence  all  penalties  were  to  be  graduated  according  to  the  of- 
fense, with  the  same  unmistakable  regard  to  the  divinely  con- 
stituted rights  of  family,  character,  property,  and  person,  and 
the  entire  freedom  and  independence  of  a  conscience  toward 
God.  With  the  same  extreme  of  carefulness  and  exact  justice, 
and  for  the  perfection  of  its  efficacy,  the  penalty  was  to  be 
guarded  from  any  possible  mistake  in  its  application  through 
reliance  on  merely  circumstantial  evidence.  Thus  the  legislation 
was  as  perfect  as  the  benevolence  and  justice  of  God  could 
make  it. 

Evidently  there  was  required,  in  the  foundations  of  a  new  so- 
cial state,  a  penalty  against  murder  to  the  last  degree  dreadful 
and  deterring,  fatal  and  final,  with  all  the  powers  of  human  gov- 
ernment ordained  and  pledged  for  its  execution.  God  himself 
would  make  Cain's  own  dread  of  being  murdered,  through  all 
men's  sense  of  justice,  inextinguishable,  by  having  it  established 
as  the  first  law  of  humanity  that,  if  any  man  destroyed  another's 
life,  his  own  life  should  go  for  it.  And  all  the  fiends  of  re- 
morse, detection,  and  a  righteous  vengeance,  with  all  the  ener- 
gies and  vigilance  of  human  selfishness  itself,  aghast  with  horror, 
should  combine  to  arrest,  and  exterminate  the  miscreant;  This 
uproar  of  indignation  and  wrath  was  what  Cain  himself  expected, 
when  driven  forth  from  the  presence  and  protection  of  God. 

The    penalty    is    restricted    to    murder,    though    some    crimes 


CAPITAL    PUNISHiMENT  105 

against  personal  rights  are  equivalent  to  murder,  and  produce 
it,  and  even  worse,  as  for  example,  slavery,  and  in  consequence, 
all  the  infinite  horrors  of  the  slave-trade.  And,  therefore,  there 
shines  forth,  illuminating  and  illustrating  the  law  against  murder, 
like  another  sun  risen  on  mid-noon  that  other  and  later  unparal- 
leled Hebrew  law  in  behalf  of  the  enslaved:  "He  that  stealeth 
a  man  and  selleth  him,  or  if  he  be  found  in  his  hands,  he  shall 
surely  be  put  to  death."  This  is  the  polarized  light  of  the  first 
penalty,  crystaUizing  for  all  generations  the  meaning  and  in- 
surance of  the  primal  blood-statute ;  for  no  man  in  his  senses 
will  pretend  that  this  grand  edict  of  God's  protecting  and  aveng- 
ing mercy  was  never  intended  as  a  law,  but  was  merely  a  pre- 
diction of  the  prevalence  of  legal  murder.  And  so  of  the  statute, 
in  such  absolute,  imperative  terms  :  "Ye  shall  take  no  satisfaction 
for  the  life  of  a  murderer  which  is  guilty  of  death,  but  he  shall 
surely  be  put  to  death."  (Num.  xxxv.  31.)  There  was  this 
insurance  of  the  penalty  laid  upon  every  generation.  It  grew 
into  one  of  the  ever-present  Eumenides  in  men's  minds,  as  in  the 
Book  of  Proverbs,  "A  man  that  doth  violence  to  the  blood  of  any 
person  shall  flee  to  the  pit ;  let  no  man  stay  him."  Hence,  also, 
the  careful  and  just  definitions  of  what  constitutes  a  murderer, 
and  the  requirement  of  witnesses  as  to  the  fact  of  the  crime, 
evil  intention  being  always  essential,  and  mere  circumstantial 
evidence  not  to  be  relied  upon. 

Malice  aforethought  once  proved,  the  crime  is  demonstrated, 
and  nothing  shall  save  the  murderer,  not  even  the  city  of  refuge 
provided  by  God  himself  for  a  just  trial,  nor  the  intervention  of 
any  pardoning  or  interceding  power,  nor  the  altar  of  God.  "Thou 
shalt  take  the  murderer  from  mine  altar,  that  he  may  die."  (Ex. 
xxi.  14.)  If  not,  if  the  murderer  is  let  off  with  his  life,  then 
the  whole  land  remains  guilty,  and  the  blood  of  the  murdered 
man  crieth  unto  God  from  the  ground ;  for  the  primal  curse  is 
on  this  crime  against  God's  image  and  mankind,  and  no  atone- 
ment or  restitution  can  be  made  for  it  by  man ;  none  shall  be 
accepted. 

This  is  the  secret  of  some  of  the  most  terrific  tragedies  of 
retribution  by  the  Divine  Vengeance  otherwise  so  unaccountable. 


io6  SELECTED  ARTICLES 

but  as  startling  and  warning  for  nations  as  for  individuals.  (See 
II.  Sam.  xxi.  1-14.  See,  also,  the  awful  charge  laid  upon  Solo- 
mon by  David  on  his  death-bed,  II.  Kings  ii.  5,  6,  31,  33.) 
These  are  illustrative  instances  of  that  profound  intuitive  sense 
of  the  sacredness  of  retributive  justice,  manifested  by  the  inhab- 
itants of  Melita  in  the  case  of  Paul.  "No  doubt  this  is  a  mur- 
derer, whom,  though  he  hath  escaped  the  sea,  yet  ?  ??  ?  — 
divine  vengeance — suffereth  not  to  live."  This  is  the  wonderful 
inspiration  of  similar  classic  utterances,  so  abundant,  solemn, 
and  familiar  in  the  loftiest  heathen  tragedians  and  philosophers, 
whose  beliefs  in  the  providence  of  a  just  and  righteous  God 
were  shared  by  these  uncultured  but  thoughtful  barbarians. 

This  law  is  the  perfection  of  heavenly  mercy  itself,  taking 
all  right  of  revenge  away  from  individuals  and  reserving  the 
retribution  for  injuries  as  belonging  to  God's  own  attribute  of 
impartial  universal  justice.  The  Sermon  on  the  Mount  is  not 
more  entirely  God's  law  of  love  for  all  mankind  than  was  the 
statute  given  through  Noah  for  the  whole  world's  good  a  cov- 
enant of  divine  wisdom  for  the  education  of  the  world  in  right- 
eousness. It  sets  forgiveness  in  the  heart  of  every  human  be- 
ing, and  proclaims  revenge  as  murder.  So  the  handwriting  of 
God  in  the  rainbow  binding  the  storm  was  but  the  prophecy 
and  prelude  of  that  eternal  melody  in  the  song  of  the  angels, 
"Glory  to  God  in  the  highest,  on  earth  peace,  good-will  to  men," 
and  of  that  celestial  doxology,  belonging  to  the  perfection  of 
all  religion,  in  the  worship  of  faultless  prayer,  "For  thine  is 
the  kingdom,  the  power,  and  the  glory,  forever.  Amen."  As 
everything  needful  for  mankind  to  ask  is  in  our  Lord's  Prayer, 
so  in  that  august,  comprehensive.,  transaction  of  God  with  Noah 
there  was  the  perfection  of  all  ni^l  discipline,  and  just  and 
peace-assuring  criminal  jurisprudence,  by  which  men  needed  to 
be  ruled  on  earth  and  educated  for  citizenship  in  heaven. 

Thus,  all  retributive  punishment,  and  all  the  securities  and 
arrangements  of  God  for  it,  are  a  concentration  of  all  the  lessons 
and  energies  of  true  moral  discipline.  All  right  training  of 
the  mind,  the  accurate  tracing  of  consequences,  an  equitable 
connection  of  cause  and  event,  and  all  disposal  of  awards,  all 


CAPITAL    PUNISHMENT  107 

retributions  for  guilt,  must  be  grounded,  first  of  all,  in  absolute 
justice.  Otherwise,  if  utility  alone  were  wisdom,  and  men  the 
judges,  the  world's  Caiaphases  of  expediency  would  become 
its  glorified  statesmen  and  saviours. 

Now,  the  impossibility  for  any  but  an  Omniscient  Being 
to  know  and  measure  the  absolute  desert  of  every  action,  throws 
the  whole  power  and  right  of  governmental  retribution  upon 
the  revealed  authority  and  will  of  God,  making  government 
itself  a  divine,  paternal,  protecting,  educating  institution,  main- 
taining its  permanence  and  right  by  a  conscience  in  the  people 
instructed  toward  God.  The  knowledge  of  God's  law  is  in 
such  education,  securing  obedience,  independence,  liberty,  pros- 
perity, and  whatsoever  things  are  true,  honest,  just,  pure,  love- 
ly, and  of  good  report.  The  God  of  peace  is  in  and  with  such 
a  socialism,  and  not  the  savageness  and  selfishness  of  the  sur- 
vival of  the  fittest.  And  this  is  the  mighty' educating  power 
of  law  proceeding  from  the  bosom  of  God  as  the  Father  of 
his  intelligent  creatures,  and  acknowledged  and  executed  by 
human   governments. 

The  efficacy  of  the  penalty  against  murder  can  be  demon- 
strated (ist)  by  restricting  it  to  murder,  and  (2nd)  by 
making  it  immutable  and  certain.  The  man  who  murders  an- 
other kills  himself.  When  the  most  hardened  villain  is  made 
sure  of  that,  who  will  strike  the  blow?  Make  the  penalty 
exceptional  and  inevitable,  as  it  ought  to  be,  and  murder  would 
be  unknown  under  a  government  of  infallible  justice.  The 
divine  edict  would  be  found  of  such  deterring  efficacy  that  the 
government  would  never  need  to  execute  it.  The  known  cer- 
taint}^  of  the  penalty  would  put  a  stop  to  the  crime. 

But  the  certainty  that  a  murderer  cannot  at  .aay.._rate_be^ 
punished  with  death  would  inevitably  increase  the  crirne,  pre- 
senting such  a  powerful  temptation  to  murder  in  self-defense, 
during  the  commission  of  any  other  crime  whatever.  Thi^ 
would  make,  murderers  out  of  common  villains.  It  would  ten:ipt 
the  midnight  burglar  even  to  begin  his  work  of  robbery  with 
assassination  for  security  in  the  process,  and  then  to  complete 
it,  double-locked  from  discovery  by  the  death  of  all  the  wit- 
uesses. 


\ 


io8  SELECTED  ARTICLES 

The  law  of  God  says  to  the  criminal,   Become  a  murderer, 
and  you  are  lost.     The  abolition   of   the  penalty   says,   Murder, 
and  you  are  saved.     The  removal  of  the  dreaded  penalty  holds 
out  an   inducement   so  diabolical   to   the   highest   crime,   that   it 
seems    incredible   that   any    humane    form    of    socialism    should 
entertain   it   for   a   moment.     You   may   save   your   own   life,   it 
says,  by  killing  thg,.3adiJlg§,ses   ag^mst  you.      Y^ou  can   onIv:.be^ 
TmjprTsoned,  even  if  you  kill ;   but  if  any  one  tries  {r^  }{]]]  y'^^V 
you  havejthe  right  to  kill  him.     ^'on  may  even  escape  condem-.^ 
nation,    if    tried,    by    the    plea    of    sud3en    msanity^    into    whirh  ^ 
the   threat   of   death    and   the   desire   to    escape   are   affirm^fj   fo 
have  driven  j^u.^ 

Kill,  and  you  may  be  defended,  even  by  charge  of  the 
judge,  and  verdict  of  the  jury,  on  the  ground  of  sudden,  ir- 
resistible frenzy,  or  delirium  from  intoxication,  and  therefore 
not  punishable.  But  the  stealing  of  a  million  dollars  is  never 
thus  protected ;  a  well-planned  burglary,  never.  Therefore  the 
assassin  has  the  advantage.  The  killing  of  the  owner  of  the 
money  may  be  a  sudden  madness ;  it  may  be  even  argued  that 
it  was  accidental,  or  in  self-defense,  without  intention  to  kill, 
and  therefore  not  punishable :  see  the  trial  of  Webster,  for 
the  murder  of  Parkman;  also  the  case  of  Colt.  If  the  owner 
had  chosen,  he  might  have  saved  his  life  by  the  sacrifice  of 
his  property,  and  so  prevented  the  murder.  By  attempting 
to  defend  his  property,  he  has  compelled  the  burglar  to  be- 
coifle  a  murderer,  because  that  crime  was  the  safest — an  in- 
surance against  punishment,  all  things  considered,  having  made 
it  profitable. 

Thus,  but  too  surely  the  abolition  of  the  death  penalty  would 
offer  a  recompense  to  the  highest  criminal  sagacity  and  bold- 
ness.- And  the  more  hardened  the  criminal  may  have  become, 
through  the  laxity  of  law  and  the  absence  of  any  appeal  to 
conscience  and  to  God,  the  more  the  law  defends  him,  in  case 
of  any  midnight  conflict ;  and  he  knows  this  beforehand,  and 
reasons  accordingly.  If  he  breaks  into  a  house,  and  stabs  its 
sleeping  owner,  that  he  may  not  testify  against  him,  his  vic^^~- 
tim  is  abandoned  by  the  law  to  the  death-blow  of  the  murderer. 


CAPITAL    PUNISHMENT  109 

who  secures  his  own  Hfe  by  taking  that  of  the  sleeper,  while 
the  assassin  is  as  effectively  protected  as  if  a  reward  of  his 
ferocity  had  been   guaranteed. 

Then,  again,  the  moment  the  murderer  is  being  tried  for  his 
life,  the  sympathies  of  the  public  and  the  press  are  moved  in 
his  behalf,  so  that  even  the  sternest  jury  feel  the  impulse; 
and,  if  they  convict,  extenuating  circumstances  are  pleaded ; 
and  even  if  the  murderer  is  sentenced,  petitions  for  reprieve, 
for  a  new  trial,  for  pardon,  for  commutation  of  the  punish- 
ment, are  gotten  up,  and  powerful  reasons  of  humanity  are 
argued,  which,  if  resisted  by  the  governor,  bring  upon  him 
and  upon  the  law  itself  the  accusation  of  being  the  actual  mur- 
derers. 

And  the  more  effectively  God's  law  and  a  future  final  ret- 
ribution are  denied,  or  obscured  in  the  murderer's  conscious- 
ness, by  his  never  having  heard  of  these  truths  in  the  common 
schools  through  which  he  graduated,  and  by  the  legal  and  so- 
cial habit  of  denying  the  authority  of  the  Scriptures  and  of 
God  over  both  government  and  people  (a  habit  which  the 
exclusion  of  positive  religion  from  the  state,  its  constitutions, 
and  its  schools,  fosters  from  childhood),  the  more  rational 
and  righteous  it  appears,  in  his  own  view,  to  take  care  only 
of  himself,  no  matter  what  becomes  of  others.  He  has  nev- 
er been  taught  that  God  requires  murder  to  be  punished  by 
death,  much  less  that  there  is  an  endless  retribution,  in  another 
world,  for  crime  unrepented  of  in  this. 

Had  "the  state  done  its  duty  in  his  education,  he  would  nev- 
er have  been  a  murderer.  It  is  moral  assassination  by  the 
state  to  have  let  him  grow  up  in  such  brutality.  A  law  so 
benevolent  and  illuminating  as  that  of  God  against  murder, 
with  its  very  reason  grounded  in  the  immortality  of  man  and 
his  accountability  to  God,  and  his  obligations  of  love  to  his 
fellow-man  in  God's  image,  binds  the  government  to  teach 
its  whole  meaning,  and  to  proclaim  it  with  all  the  light  thrown 
upon  it  from  God's  successive  revelations,  from  the  precedents 
broadening  down  through  ages,  and  from  the  final  teachings 
of   Christ.     Government,   in   assuming  the   authority   to   punish, 


no  SELECTED  ARTICLES 

is  bound  to  flash  the  whole  lightning  of  the  statute  to  the  ut- 
termost depths  of  society,  till  its  divine  meaning  penetrates 
the  entire  mass. 

To  withhold  such  instruction,  and  thus  educate  the  masses 
in  ignorance  both  of  God's  claims  and  care,  and  then  and  thus 
to  apply  the  penalty  of  death  for  crime,  is  at  once  such  con- 
tempt of  God,  and  such  a  process  of  cruelty  and  despotism 
against  man,  as  would  make  government  an  agency  of  perdi- 
tion. The  acknowledgment  of  responsibiHty  to  God  for  the 
protection  of  human  life,  and  for  the  enlightenment  and  free- 
dom of  the  conscience,  is  incontrovertibly,  therefore,  the  duty 
of  all  governments.  Law  is  thus  enthroned  in  God,  and  God 
in  law;  and  the  state,  for  insurance  of  its  own  permanence 
and  usefulness,  must  wear  its  appointed  seal  and  robes  of 
majesty  as  "a  power  ordained  of  God,"  proclaiming  that  it 
maintains  an  authority  received  from  God,  by  the  enlightened 
conscience  of  its  citizens  toward  God.  This  is  the  only  per- 
fect security  for  human  freedom.  The  law,  without  such  edu- 
cation of  the  people,  and  without  the  appeal  to  God,  becomes 
a  defiance  and  violation  of  his  will.  Its  efficacy  depends  on 
its  divine  sanction  being  taught,  and  necessitates  that  teach- 
ing by  the  state.  How  otherwise  can  any  government  be  hon- 
est, or  any  of  its  penalties  just,  humane,  and  reformatory? 

Immediately  after  the  dreadful  murder  of  our  revered  and 
beloved  Lincoln,  President  Garfield,  then  a  member  of  the  United 
States  Congress,  delivered  in  New  York  an  address  on  the 
duty  of  the  government  and  people,  closing  with  these  mem- 
orable words:  "Love  is  at  the  front  of  the  throne  of  God; 
but  justice  and  judgment,  with  inexorable  dread,  follow  behind. 
This  nation  is  too  great  to  look  for  mere  revenge;  but  for 
the  good  of  the  future  I  would  do  everything." 

In  the  United  States,  amidst  increasing  perils  from  the 
socialism  of  ignorant  masses,  annually  multiplying  by  millions; 
with  all  conflicting  infidel  speculations  and  political  theories, 
from  Nihilism  to  Mormonism,  let  loose,  and  sensual  and  intoxi- 
cating habits  unrestrained ;  with  the  suffrage  universal,  and  vio- 
lent   factions,   and    strifes    for   office,    gain,    and   power   univer- 


CAPITAL    PUNISHMENT  in 

sal  also;  with  scientific  dynamites  of  revenge  inviting  every 
disappointed  villain's  handling — the  proposed  abolition  of  the 
divine  law  against  murder  would  be  more  inhuman,  reckless, 
and  unjust  than  it  would  be  to  make  a  breach  in  one  of  the 
dikes  in  Holland,  letting  in  the  sea.  God  proposes  to  abolish 
the  crime;  man  to  abolish  the  penalty.  God  seeks  our  deliv- 
erance from  sin;  man  our  evasion  of  its  consequences.  Self- 
government  under  God  is  heaven.  Self-government  without  God 
is  anarchy  and  hell.    Which  will  we  choose? 


Mr.  Hand. 

The  dispute  as  to  capital  punishment  is,  at  the  present  time, 
narrowed  down  to  the  point  whether  it  is  permissible,  justi- 
fiable, and  expedient  for  the  sovereign  power,  in  any  case,  tg 
punish  the  crime  of  murder  by  inflicting  death  upon  the  mur- 
derer. 

Of  the  opponents  of  capital  punishment,  some  deny  the  ab- 
stract right  of  government  deliberately  to  destroy  a  human 
being,  under  any  circumstances ;  some,  without  questioning  the 
right,  deny  that  a  past  and  irremediable  offense  of  any  sort 
will  justify  such  action;  and  others  deny  the  expediency  of 
the  punishment  for  murder  or  other  crime. 

The  theory  once  so  generally  received,  that  men,  originally 
in  a  state  of  nature,  voluntarily  entered  into  a  social  compact, 
yielding  some  of  their  natural  rights  in  return  for  protection, 
and  that  this  was  the  origin  of  government,  is  now  exploded, 
and  it  has  been  shown  by  the  historical  method,  applied  to 
social  science,  that  social  and  political  organizations  have  quite 
other  beginnings.  It  seems  to  be  quite  needless  to  discuss  the 
question  of  the  natural,  inalienable  right  of  an  individual  to 
his  life,  not  forfeitable,  and  over  which  government  can  acquire 
no  control.  It  is  necessary  to  be  conceded  not  only  that  the 
individual  may,  by  conduct  absolutely  inconsistent  with  the 
public  safety,  forfeit  his  life  to  the  sovereign,  but  that  the  sov- 
ereign may  call  even  upon  the  blameless  citizen,  to  sacrifice  his 
life  for  the  common  good  and  in  resisting  the  public  enemy. 

The  question,  therefore,   of  capital  punishment   for  murder 


A 


112  SELECTED  ARTICLES 

is  one,  not  of  power,  but  of  justice  and  expedi-ency.  I,  for 
one,  believe  that  for  that  crime  such  penalty  is  necessary, 
justifiable,   and   expedient,   and   should  be   retained. 

For  many  centuries,  indeed,  in  all  the  principal  nations  of 
Europe  the  death  penalty  was  inflicted  for  various  grades  of 
crime  against  property  as  well  as  person,  and,  especially  in 
England,  for  those  even  of  trivial  character.  But  now,  in 
most  of  the  civilized  governments  of  the  'world,  that  punish- 
ment has,  with  rare  exceptions,  been  reserved  for  wilful  mur- 
der— the  deliberate  and  malicious  destruction  of  a  human  be- 
ing. As  I  have  said,  this  penalty  for  such  crime  I  think  is 
necessary  and  proper,  and  should  be  retained. 

Those  who  are  opposed  to  capital  punishment  may  proper- 
ly rejoice  that,  in  the  last  hundred  years,  so  large  a  domain 
of  lesser  crime  has  been  freed  from  the  terrible  punishment 
of  death.  The  urgent  reasons  for  the  abolition  of  the  death 
penalty  in  the  case"  of  crimes  against  property,  and  even  most 
of  the  serious  crimes  against  the  person,  when  not  accompanied 
with  a  murderous  intent,  are  abundant,  but  are  certainly  not 
applicable  to  the  crime  of  murder.  These  bloody  laws  were 
justly  repealed  as  in  violation  of  the  fundamental  principles 
of  penal  legislation  established  in  modern  times.  They  vio- 
lated the  principle  that  absolute  necessity  should  alone  au- 
thorize the  destruction  of  mankind  by  the  hand  of  man ;  that 
it  is  manifestly  just  that  punishment  should  be  graduated 
according  to  the  enormity  and  malignity  of  the  crime;  that  to 
apply  the  extreme  penalty  to  all  grades  confuses  the  public 
mind  as  to  the  atrocity  of  the  misdeeds  tjiemselves ;  that  the 
disproportion  of  the  punishment  to  the  offense  arouses  pity 
for  the  offender,  and  creates  indifference  to  the  offense,  and 
hence  gives  impunity  to  crime  and  contempt  for  the  law ;  and 
that  the  infliction  of  the  same  punishment  for  steaHng  a  shilling 
and  for  murder  tends  to  lessen  the  horror  and  aversion  natural- 
ly felt  for  the  convicted  perpetrator  of  the  latter. 

.  Surely,  to  punish  with  death,  as  was  done  in  England  be- 
fore the  reform  of  its  penal  laws,  the  association  with  gypsies 
for  a  month  (see  statutes  of  the  fifth  year  of  Elizabeth's  reign, 


CAPITAL    PUNISHMENT  113 

chapter  ten),  the  writing  an  anonymous  letter  demanding  mon- 
ey (see  statutes  of  ninth  George  I.,  chapter  twenty-five),  the 
steaHng  of  goods  to  the  value  of  a  shilling,  the  doing  ma- 
licious damage  to  Westminster  bridge,  and  other  like  offenses, 
is  not  defensible  upon  the  same  ground  as  the  punishment  of 
the  awful  crime  of  murder  by  the  same  penalty.  And  it  cannot 
be  contended  that  the  repeal  of  the  death  penalty  as  to  all 
crimes  of  a  lower  grade — a  penalty,  if  inflicted  at  all,  unques- 
tionably to  be  reserved  for  the  gravest  offenses,  and  obviously 
disproportionate  to  any  other — affords  any  argument  for  its 
abolition  in  all  cases,  however  atrocious.  The  general  grad- 
ual amelioration  of  the  penal  laws  in  Christendom  for  years 
past,  and  the  substitution  of  other  lesser  punishments  for  the 
capital  one,  cannot,  therefore,  of  themselves  be  insisted  upon 
as  an  argument  for  total  abolition  of  the  latter. 

I  have  had  no  opportunity  to  see  the  contributions  on  that 
side  of  the  question  in  the  present  conference,  and,  of  course, 
cannot  anticipate  whether  such  an  argument  may  be  adduced. 
It  has,  however,  sometimes  .been  used,  and  the  mere  partial 
abolition  for  the  lesser  crimes  has  been  urged  with  some  ef- 
fect in  persuading  the  public  that  "hanging  for  murder"  was 
a  remaining  relic  of  barbarism  existent-  in  these  modern  days, 
and  stood  a  last  incongruous  and  monstrous  monument  of  the 
illogical  ferocity  of  our  ancestors  in  applying  death  as  the 
invariable   punishment    for   offenses    of    every   grade. 

Aside  from  the  suggestions  already  made,  another  answer 
to  this  argument  may  be  drawn  from  the  Scriptures.  For, 
by  an  injunction  to  Noah  and  his  family,  the  progenitors  of 
the  human  race,  given  after  the  deluge,  it  was  divinely  com- 
manded that  "whosoever  sheddeth  man's  blood,  by  maa^-sJUaU-l 
l^i'c  Klr|Qr|  he  shed.^^^T^TKTs  solemn  sanction  f^r  punishing  mur^ 
(jer  with  death  certainly  is  wanting  as  regards^'aTl  oTher  crimes. 

Indeed,  tliis  argument  'has  a  much  larger  application.  It 
is  impossible  to  see  how,  in  the  minds  of  those  who  believe 
in  the  divine  character  of  this  record,  in  its  absolute  verity 
and  its  obligation  binding  upon  humanity  for  all  time,  this 
command  does  not  put  an  end  to  the  dispute,  and  render  fur- 


114  SELECTED  ARTICLES 

ther  debate  useless.  Unlike  many  provisions  to  be  found  in 
other  parts  of  the  Pentateuch  promulgated  as  parts  of  a  penal 
code  for  the  government  of  the  Jews,  here  is  nothing  local, 
nothing  temporary,  nothing  merely  regulating  the  conduct  of 
a  particular  nation  under  peculiar  circumstances  and  in  a  par- 
ticular country.  It  vv^as  not  intended  for  nor  addressed  to 
any  particular  tribe  or  people,  but  was  a  solemn  compact  with 
the  new  father  of  the  human  race,  expressly  commanding  and 
binding  him  and  his  descendants,  in  all  times  and  countries, 
to  punish  the  murderer  with  death.  It  was  a  decree  necessarily 
semper,  ubique,  omnibus. 

Similar  injunctions  to  the  Jewish  people,  referred  to  in  the 
opening  paper  of  Dr.  Cheever,  might  repeat  it  in  language 
more  precise,  but  could  not  enlarge  or  intensify  its  obligation 
upon  all  men.  It  was  the  first  great  universal  law  promul- 
gated to  the  world. 

But  that  we  deal,  in  these  days,  with  a  generation  inclined 
to  look  with  scant  credulity  upon  the  book  of  Genesis,  its  del- 
uge, its  ark,  and  its  Noah,  must  be  confessed.  By  some,  at 
least,  of  the  opponents  of  capital  punishment,  arguments  other 
than  the  divine  law  announced  to  Noah,  and  its  binding  force  on 
the  world,  will  be  demanded.  By  them,  its  authority  will  be 
denied,  its  application  to  modern  society  perhaps  scouted,  and 
its  punishment  for  murder  likened  to  the  Old  Testament  pun- 
ishment for  witchcraft. 

To  these  objectors  it  may  be  said  that  there  are  sufficient 
reasons  for  the  punishment  of  murder  by  death  in  the  nature 
of  the  crime  and  the  necessity  of  the  case  Something,  indeed, 
should  be  allowed  to  the  general  usage  of  all  civilized  peoples. 
It  creates  at  least  a  favorable  presumption.  The  barbarous 
Frank,  Saxon,  or  Goth  valued  human  life  in  money.  A  mur- 
der was  redeemed  by  a  fine.  The  civilized  Englishman,  French- 
man, Italian,  and  Spaniard  punish  it  with  death,  and  for  that 
crime  have  steadily  retained  that  extrem.e  penalty,  while  abol- 
ishing it  in  many  other  cases.  With  civilization  came  the 
idea  of  the  enormity  of  the  offense  and  its  danger  to  society. 
From  the  moment  the  notion  of  a  crime  against  the  govern- 


CAPITAL    PUNISHMENT  115 

ment  rather  than  a  mere  injury  to  the  family  of  the  mur- 
dered man  was  formed,  the  necessity  of  the  death  penalty  was 
recognized. 

But,  passing  this  suggestion,  obviously  the  first  duty  the 
sovereign  (whether  a  monarch  or  the  sovereign  people)  owes 
to  the  citizen  is  the  protection  and  preservation  of  his  life  from 
violence.  In  the  absence  of  such  protection,  the  peace  and  the 
order  necessary  to  the  social  existetice  must  disappear,  and  the 
security  of  the  individual,  indispensable  to  all  social  progress,  is 
at  an  end.  It  follows  that  every  safeguard  and  preventive 
possible  in  the  nature  of  the  case  to  be  provided  against  the 
crime  of  murder,  it  is  the  manifest  duty  of  the  government 
to  provide. 

Within  certain  limitations,  it  may  be  laid  down  as  generally 
true,  that  the  legislature  is  justified  in  the  infliction  of  any 
degree  of  severity  necessary  for  the  prevention  of  this  great 
crime.  Such  severity  is  manifestly  but  a  measure  of  self- 
preservation.  The  prevention  of  all  crimes  should  be  the  main 
(although,  as  I  suggest  below,  not  the  only)  object  of  the  law- 
giver. But,  as  to  murder,  it  is  an  object  necessary  to  the  very 
existence  of  society,  that  its  total  prevention  should  be  meas- 
urably  attained. 

The  punishment  of  death  is  unquestionably  the  most  pow- 
erful deterrent,  the  most  effectual  preventive,  that  can  be  ap- 
plied.    Human  nature  teaches  this  fact.     An  instinct  that  out- 
runs all  reasoning,  a  dreadful  horror  that  overcomes  all  other 
sentiments,  works  in  us  all  when  we  contemplate  it. 
—      ^--.—.jEE^psj^ -^^.^^j,jg^   ^^^   most   loathed   worldly  life 
That  age,   ache,  penury,   and  imprisonment 
Can  lay  on  nature,   is  a  paradise 
To  what  we  fear  of  death, 

says  Shakespeare. 

The  ancients  exercised  a  horrible  ingenuity  in  punishmeil 
They  inflicted  crucifixions,  flayings,  burnings,  boilings,  impale- 
ments, scourgings,  exposure  to  wild  beasts,  and  other  tortures, 
which  exhausted  the  invention  of  men;  but  that  death  was  the 
final  end  of  each  gave  even  these  their  most  awful  terror.  They 
shocked  decency  and  humanity,  and  were,  besides,  useless  refine- 


Ii6  SELECTED  ARTICLES 

ments  of  cruelty,  as  preventives  of  crime,  since  the  mere  death  of 
which  they  were  the  means  outweighed  all  other  horror.  Take 
away  that,  and  they  were  but  temporary  pains. 

It  has  been  found,  by  the  experience  of  many  nations  and 
many  ages,  that  death  alone  impressed  the  imagination  of  the 
people,  and  alone  carried  so  vivid  a  horror,  as  to  check  the 
malignant  passions  and  the  deadly  hand  of  the  murderer. 

It  has  been  sometimes  objected  that  facts  do  not  bear  out 
this  assertion ;  that  where  the  capital  penalty  was  abolished, 
the  crime  of  murder  did  not  increase ;  that  ah  its  abolition  in 
England  as  a  punishment  for  theft  and  other  lesser  crimes 
did  not  result  in  an  increase  of  those,  the  same  is  foifnd  to 
be  the  consequence  of  total  abolition.  The  space  allowed  me 
here  does  not  permit  a  discussion  of  the  statistics  collected 
on  this  question.  Suffice  it  to  sa}-,  that  the  results,  as  shown 
from  the  reliable  records,  do  iiot  sustain  so  paradoxical  a  propo- 
sition. It  would  be  in  direct  contradiction  to  the  ineradica- 
ble instincts  of  humanity,  if  it  were  so.  The  loss  of  life  is 
universally  and  instinctively  dreaded  beyond  all  other  calami- 
ties by  all  classes  of  men — the  rich  and  poor,  the  upright  and 
vicious,  the  learned  and  ignorant  alike ;  it  is  incredible  that  its 
certain  infliction  as  the  inevitable  consequence  of  an  illegal 
act  would  not  have  the  supremest  influence  in  preventing  that 
act. 

It  may  be  true  that  communities  are  found,  naturally  law- 
abiding  and  tranquil,  where  capital  crime  is  absent,  although 
no  death  penalty  exists ;  and  again,  that  there  are  turbulent 
communities  where  murders  are  more  frequent,  although  the 
laws  are  nominally  severe.  But  it  cannot  be  claimed,  unless 
the  laws  are  enforced,  that  such  facts  offer  any  argument. 
There  can,  of  course,  be  no  prevention  of  crime  by  the  fear 
of  death  among  a  people  where  crime  is  rarely  punished  at 
all.  Death,  although  pronounced  in  the  statute  book  the  pun- 
ishment for  murder,  can  have,  no"  terror  foFlrnurderers  when^^ 
itis_jievei,_inflicted. — A- known  brutum  fulmen  can  have  no  ef- 
fect except  to  excite  contempt. 

This    punishment    is    the    only   sufficient   preservative    to    so- 


CAPITAL    PUNISHMENT  117 

ciety ;  but  to  preserve,  it  must  be  inflicted.  The  convicted  murderer 
cannot,  of  coarse,  by  his  cutting  off  restore  the  murdered  man 
to  life,  nor  prevent  the  crime  which  he  has  already  committed, 
but  the  certainty  that  such  awful  punishment  will  inevitably 
follow  such  crime  is  the  preventive  influence.  If,  as  is  unfor- 
tunately and  disgracefully  the  case  in  certain  sections  of  our 
own  country,  the  crime  of  murder  is  hardly  ever  followed 
by  a  judicial  execution,  if  the  occasional  lawless  destruction 
of  the  murderer  without  trial  is  the  only  punishment  he  need 
fear,  and  depends  wholly  upon  the  mere  chance  momentary 
excitement  of  the  community  collected  as  a  lynch-law  mob, 
death,  whatever  may  be  the  words  of  the  statute  book,  is  not 
there  the  actual  punishment  of  murder,  and,  of  course,  the  fear 
of  it  cannot  operate  to  deter  the  would-be  assassin. 

Comparisons  of  such  communities,  where  the  death  pen- 
alty is  decreed  by  law  but  scarcely  ever  executed,  with  more 
quiet  states,  may  permit  a  deceptive  argument,  but  are  cer- 
tainly not  proof  against  the  efficiency  of  capital  punishment. 
The  question  is  whether  a  punishment,  reasonably  certain  to 
be  the  result  of  an  offense,  will  deter  from  its  commission — 
not  whether,  in  a  lawless  community,  a  law  never  enforced 
can  be  effective  as,  in  itself,  a  scarecrow. 

But  it  is  said  that,  even  in  law-abiding  communities,  mur- 
derers escape  justice  because  of  the  rellictance  of  the  tribunals 
to  impose  an  irremediable  and  irrevocable  punishment.  To 
some  extent  this  is  true;  to  the  extent  that  there  never  should 
be  conviction  of  a  capital  offense  to  which  so  awful  a  pun- 
ishment is  necessary,  except  in  the  clearest  case,  it  ought  to 
be  true.  But  in  most  of  those  trials  where  an  acquittal  has 
been  a  clear  failure  and  mockery  of  justice,  it  will  be  found 
that  the  juries  have  refused  to  find  any  guilt,  although  a  ver- 
dict of  manslaughter,  punishable  only  with  imprisonment,  would 
have  been  entirely  legal.  In  fact,  the  cases  were  those  in  which 
the  mind  of  the  tribunal  was  so  warped  by  some  prevailing- 
prejudice  or  sympathy,  that  their  verdict  was  against  the  fact 
and  the  law,  and  would  have  been  so,  whatever  were  the  pen- 
altv  of  conviction. 


v: 


ii8  SELECTED  ARTICLES 

Indeed,  an  answer  to  these  objections  is  furnished  from 
actual  experience,  by  the  example  of  a  great  nation.  In  no 
country,  since  the  reform  of  its  criminal  law,  does  the  capital 
punishment  more  certainly  follow  the  offense  than  in  Eng- 
land ;  in  no  other  country  do  juries  more  implicitly  obey  the 
law,  and,  in  clear  cases,  find  the  murderer  guilty,  in  disregard 
of  all  passing  public  excitement.  And  in  no  other  country  has 
human  life  become  so  safe,  so  sacred,  and  so  completely  pro- 
tected. It  contains  a  population  who  are  subject  to  the  most 
violent  and  brutal  passions ;  immense  inequalities  of  wealth 
and  poverty  afford  strong  temptations  to  crime ;  and  yet,  by 
the  certainty  of  the  death  penalty,  the  crime  of  deHberate  mur- 
der is,  more  perhaps  than  in  any  other  country,  completely  pre- 
vented. 

But  it  is  objected,  why  were  not  theft  and  robbery  ex- 
tirpated there  when  the  same  penalty  was  applied  to  them,  and 
why  have  these  crimes  not  greatly  increased  since  the  abolition, 
as  to  them?  The  answer  I  have  already  suggested.  The  sense 
of  justice  was  shocked  by  the  discrepancy  between  the  compara- 
tively trivial  crime  and  the  disproportionate  punishment.  For 
that  reason,  judges  and  juries  vied  with  each  other  in  dodg- 
ing the  letter  of  the  statute,  and  mitigating  the  punishment, 
and  the  law  became  almost  a  dead  letter. 

But  it  is  sometimes  said,  "To  hang  a  man  is  a  very  poor 
use  to  which  to  put  him."  If  the  sole  object  of  government  is 
to  deal  with  a  red-handed  murderer  as  "an  erring  brother  who 
has  sinned  from  ignorance,  but  is  to  be  pardoned,  elevated, 
and  redeemed" ;  and  to  aim  solely  at  his  welfare,  this  saying  is, 
I  admit,  puzzling.  If  no  regard  is  to  be  paid  to  the  public 
safety,  except  in  the  correction  and  amelioration  of  the  mur- 
derer as  one  of  the  public ;  if  the  only  purpose  to  be  considered 
is  the  instruction  of  the  poor  fellow  by  suitable  teaching,  so  that, 
perchance,  he  may  be  taught  and  persuaded  "not  to  do  so  again," 
this  saying  has  some  force.  But,  even  then,  the  substitutes  sug- 
gested by  the  abolitionists  do  not  avoid  the  difficulty.  Perpetual 
imprisonment  is  hardly  a  more  profitable  use  to  be  niade  of  a  man 
than  hanging  him,  and  such  use  for  a  hardened  villain  is  perhaps 


OF 

CAPITAL    PUNISHMENT  119 

somewhat  more  unprofitable  to  an  overtaxed  community  than 
fairly  putting  him  out  of  the  way  at  once. 

But  this  sentimental  view  of  the  criminal  is  a  vicious  one. 
The  writings  of  Victor  Hugo,  and  others  of  like  tendency, 
have  done  much  to  foster  it,  and  it  is,  in  the  present  time,  danger- 
ously weakening  the  sinews  and  paralyzing  the  arm  of  justice 
throughout  the  world.     Carlyle  thus  vigorously  sums  up  the  case : 

A  scoundrel  is  a  scoundrel:  that  remains  forever  a  fact;  and 
there  exists  not  in  the  earth  whitewash  that  can  make  the 
scoundrel  a  friend  of  this  univeise;  he  remains  an  enemy,  if  you 
spent  your  life  in  whitewashing  him.  He  won't  whitewash;  this 
one  won't.  The  one  method  clearly  is  that,  after  a  fair  trial  you 
difniolre  parinership  with  him:  send  him,  in  the  name  of  Heaven, 
whither  he  is  striving  all  this  while,  and  have  done  with  him. — 
Essap   on    Model    Prisons. 

I  have  already  suggested  that  prevention,  although  one,  was 
not  the  only  purpose  of  the  infliction  of  penalties. 

If  prevention  was  the  sole  object  to  be  sought,  in  disregard 
of  all  other  considerations,  some  strange  consequences  would 
result ;  and  there  would  be  no  limit  to  any  severity,  if  found 
efl^ective.  to  deter  from  crimes  even  of  the  lighter  grades.  At- 
tainder of  blood,  confiscation  of  property,  would  become  justi- 
fiable. Indeed,  the  doctrine,  certainly  unsound,  of  Justice 
Blackstone  (Commentaries  on  the  Laws  of  England,  Book  IV., 
pages  16  and  240),  that  the  severity  of  the  law  may  be  in  pro- 
portion to  the  ease  with  which  offences  are  committed;  and 
that  "it  was  but  reasonable  that,  among  crimes  of  equal  malig- 
nity, those  should  be  most  severely  punished  which  a  man  has 
the  most  frequent  and  easy  opportunities  of  committing — 
which  cannot  be  so  easily  guarded  against  as  others,  and  which 
therefore  the  offender  has  the  strongest  inducement  to  com- 
mit," would  be  difficult  to  deny.  Petty  larceny  is  a  crime 
"the  least  easily  guarded  against,"  and  which  the  offender  has 
the  "strongest  inducement  to  commit,"  and  therefore,  with  a  view 
to  prevention  alone,  might  be  visited  with  the  severest  penalty. 

In  truth,  there  is  inherent  in  all  punishment  for  crime  the 
idea  of  executing  justice,  of  rewarding  the  offender  according 
to  his  misdeeds.  It  is  an  idea  entirely  separate  from  and  in- 
dependent of  any  notion  of  prevention,  or  even  of  public  safety. 

"Vengeance  is  mine  and  I  will  repay,   saith  the  Lord,"  but 


I20  SELECTED  ARTICLES 

vengeance— righteous  vengeance— is  the  right  and  duty  of  the 
state.  The  state  is,  in  this  respect,  the  representative  of  the  Di- 
vine Governor.  To  it,  the  sword  of  justice  and  retribution  is 
delivered.     By  it,  it  must  be  wielded. 

Capital  execution  upon  the  deadly  poisoner  and  the  mid- 
night assassin  is  not  only  necessary  for  the  safety  of  society,  it 
is  the  fit  and  deserved  retribution  of  their  crimes.  By  it  alone 
is  divine  and  human  justice  fulfilled. 

This  is  the  crowning  and  all  sufficient  ground  for  the  de- 
struction of  the  civil  murderer  by  the  civil  power. 

Although  it  should  become  absolutely  impossible  that  any 
president  of  the  United  States  should  Jiereafter  be  assassinated  ; 
although  it  could  be  demonstrated  that  the  death  of  the  assassin 
was,  as  a  measure  of  prevention  merely,  absolutely  needless ; 
although  the  sentimentalists  should  cry  out  that  the  murderer 
was  a  hardened  villain,  as  unprepared  to  die  as  Barnardine, 
"who  apprehends  death  no  more  dreadfully,  but  as  a  drunken 
dream,  careless,  reckless,  and  fearless  of  what's  present  or  to 
come,"  and  that  years  were  needed  to  instruct  and  ameliorate 
him — would  not  the  heart  of  every  sane  citizen  in  the  republic 
feel  that  the  crime  must  be  expiated  by  the  last  punishment, 
and  that  until  this  was  done,  a  solemn  duty  of  the  state  was 
neglected,  and  "the  voice  of  blood  would  cry  from  the  ground" 
for  justice?  Passion,  prejudice,  devilish  revenge  there  must  be 
none.  The  individual  is  presumed  innocent.  The  law  proceeds 
calmly,  impartially  to  investigate  the  fact.  But  if,  after  fair 
trial,  after  clear  proof,  he  stands  convicted,  then  let  him  meet 
the  just  deserts  appointed  by  eternal  justice  for  such  as  h#. 

The  law  wages  no  war  upon  any  citizen.  It  imposes  a  fit 
retribution  only  upon  the  cold-blooded  villain  who  has  malig- 
nantly destroyed  a  human  being.  Its  blow  falls  upon  him  only 
who  has  been  found  by  legal  trial  and  declared  by  legal  judg- 
ment to  be  such  a  villain.  Its  act  is  far  from  all  passion,  all  mob 
violence.  It  is  the  efifect  of  a  holy,  just  indignation,  not  hot  or 
temporary,  but  abiding  and  eternal. 

Government  is  a  trust,  and  there  can  be  no  higher  exercise  of 
that  trust  than  the  cutting  off,  in  open  day,  before  high  heaven, 


CAPITAL    PUNISHMENT  121 

solemnly  and  with  deliberation,  the  man  proved  unworthy  of  a 
longer  existence  among  his  fellows. 


Mr.  Phillips. 

I  am  glad  to  join  in  any  debate  with  so  earnest  and  brave  a 
soul  as  Dr.  Cheever — a  man  trained  to  the  severest  logic;  every 
one  of  whose  words  comes  from  the  depths  of  stern  and  consci- 
entious conviction — a  prophet  who,  in  perilous  times,  and  at 
great  risk,  prophesied  right  things,  not  smooth  things,  to  a  re- 
bellious people.  He  is  no  carpet  knight,  and  debate  with  him  is 
no  sham  fight. 

Late  events  have  intensified  interest  in  this  question,  and 
directed  public  attention  strongly  to  it.  This,  then,  is  the  God- 
given  opportunity  for  correcting  wrong  opinions  and  impress- 
ing right  ones;  the  minds  of  writer  and  reader  are  both  hot, 
and  every  argument  suggested  welds  itself  into  the  public 
thought  with  solemn  and  effective  power,  food  for  deliberate 
reflection  in  cooler  moments.  To  get  men  to  listen  is  half  the 
battle,  and  the  hardest  half,  in  all  reforms. 

If  any  one,  at  such  a  moment  as  this,  doubts  the  correctness 
of  public  opinion  on  capital  punishment,  now  is  the  hour,  above 
all  others,  for  him  to  utter  his  protest  and  enforce  his  views. 

The  word  punishment,  capital  or  any  other,  when  used  in 
reference  to  human  government,  is  a  mistaken  and  misleading 
term.  Punishment  has  relation  to  guilt.  Only  that  power, 
therefore,  which  can  measure  guilt  is  competent  to  affix  penalty 
and  to  punish.  As  Dr.  Cheever  says :  "All  penalties  were  to 
be  graduated  according  to  the  offense" ;  "retribution  for  guilt 
must  be  grounded  first  of  all,  in  absolute  justice" ;  and  he  ad- 
mits the  "impossibility  for  any  but  an  Omniscient  Being  to 
know  and  measure  the  absolute  desert  of  every  action." 

"It  is  from  an  abuse  of  language  that  we  apply  the  word 
punishment  to  human  institutions.  Vengeance  belongeth  not  to 
man"   (Eden,  Princ.  of  Penal  Law). 

Of  course  no  human  official  can  measure  the  strength  of 
inherited  tendency  toward  any  act,  criminal  or  any  other ; 
the    power    of    temptation,    the    moral    and    intellectual    train- 


122  SELECTED  ARTICLES 

ing  of  the  individual,  or  of  the  community  and  age  in  general, 
which  go  so  far  to  form  the  moral  sense  of  a  man  and  educate 
his  conscience ;  the  circumstances,  in  fact,  which  aggravate  or 
lessen  criminality.  Only  Omniscience  knows  these.  Yet  these 
make  it  a  fact  that  one  man  may  commit  murder  with  less  moral 
guilt,  in  the  eye  of  God,  than  another  steals,  or  lies  about  his 
neighbor. 

It  will  relieve  some  of  the  difficulties  of  this  question  if  we 
rid  ourselves  of  this  idea  of  punishment,  so  far  as  human 
governments  are  concerned.  Human  governments  are  only 
authorized  to  restrain  and  chastise  an  offender,  with  the  purpose 
and  motive  of  preventing  the  recurrence  of  the  harmful  act  he 
has  done.  To  prevent  the  individual  from  repeating  his  offense, 
and  to  deter  others  from  following  in  his  steps — these  are  the 
only  ends  which  human  government  can  rightfully  have  in 
view.  Governments  are  authorized  to  inflict  pain  in  order  to 
prevent  evils,  not  with  any  idea  of  punishing  guilt.  Until 
human  government  has  the  plummet  of  Omniscience  to  sound  the 
depths  of  the  human  soul,  its  weakness  and  its  wickedness,  its 
too  ready  yielding  to  temptation,  or  its  vain  effort  to  resist  it — 
until  then  the  attempt  on  its  part  to  punish  guilt  is  idle,  because 
out  of  its  power,  and  criminal,  because  sure  to  make  it  work  in- 
justice. 

"Punishment,"  says  Dr.  Cheever,  in  his  "Defense  of  Capital 
Punishment,"  printed  in  1846,  "is  sometimes  called  for  apart 
from  the  question  whether  it  be  useful  or  not" ;  and  "There  is 
such  a  thing  as  retributive  justice,  apart  from  the  purpose  of  se- 
curity against  crime,  or  the  necessity  of  the  guardianship  of  so- 
ciety and  the  universe."  And  Theodore  Frelinghuysen  affirms 
that  "the  culprit  is  doomed  to  suffer  because  he  deserves  to 
suffer." 

Such  statements  as  these  have  their  proper  place  in  the  pulpit 
and  in  discussions  touching  the  moral  government  of  the  uni- 
verse. But  they  mistake  entirely  the  limited  ability  and  authority 
and  the  proper  function  of  human  governments. 

The  statute  of  Pennsylvania,  1794,  well  says :  "The  design 
of  punishment  is  to  prevent  the  commission  of  crimes,  and  to  re- 


CAPITAL    PUNISHMENT  123 

pair    the    injury    that    hath    been    done    thereby    to    society    or 
the  individual." 

With  a  more  Christian  philosophy  than  that  which  underlies 
the  remark  of  Frelinghuysen,  the  pagan  Seneca  says :  "Nemo  pru- 
dens  punit  quia  peccatum  est,  sed  ne  peccetur" ;  or,  is  Judge 
Buller  once  roughly  translated  it :  "Prisoner,  you  are  not  hung 
for  stealing  this  horse,  but  that  horses  may  not  be  stolen." 

With  this  view  of  the  purpose  of  punishment  all  the  great 
writers  on  penal  legislation  agree, — Franklin,  Beccaria,  Bentham, 
and  others, — and  all  those  who  have  discussed  this  special  ques- 
tion,— Montaigne,  Livingston,  Rantoul,  Romilly,  Brougham, 
Montagu,  Cobden,  and  the  rest.  As  Wordsworth  sings : 
Fit  retribution,  bt/  the  moral  code  determined, 
Lies  beyond  the  State's  embrace. 

But  it  cannot  be  denied  that  New  England  and  the  states       / 
planted  by  her  sons  ignore  this  principle,   and  punish   murder 
with  death,  chiefly  because  men  believe  they  are  ordered  so  to  do       ij 
by  the  Old  Testament,  in  that  verse  of  the  so-called  covenant 
with   Noah   usually  translated :     "Whoso   sheddeth   man's  blood       v, 
by  man  shall  his  blood  be  shed."  (Genesis  ix.  6.) 

For  myself,  I  am  free  to  say  that  I  think  this  whole  covenant 
refers  exclusively  to  food,  and  the  verse  just  quoted,  with  those 
which  precede  it,  is  a  prohibition  of  cannibalism — nothing  more. 

But,  waiving  this,  let  me  submit : 

First.  The  theory  of  government,  as  universally  held  in  this 
country,  is  that  government  is  a  "social  compact," — "a  voluntary 
association  of  individuals."  Therefore,  as  an  individual  has  no 
right  to  take  his  own  life  he  cannot  confer  on  government  any 
right  to  take  it.  Indeed,  M.  Urtis — who  published  in  Paris,  in 
1831,  a  very  able  defense  of  capital  punishment — grants  his  op- 
ponents that,  if  he  allows  government  this  right,  he  is  logically 
obliged  to  admit  the  right  of  suicide. 

This  principle,  however, — that  society  has  no  right  to  take 
life  as  a  method  of  punishment, — is  the  opinion  held  by  Lafay- 
ette, Gilbert  Wakefield,  J.  Q.  Adams,  Franklin,  Beccaria,  and 
many  of  the  ablest  writers  on  social  science.  Without  insisting 
on  it,  at  this  point  of  our  argument,  is  is  fair  to  claim  that  on 
so  momentous  a  question  any  supposed  command  to  the  con- 


124  SELECTED  ARTICLES 

trary  should  be  unequivocal,  positive,  clear,  and  abundantly 
proved. 

Dr.  Cheever  acknowledged  years  ago  that  this  Scripture  proof 
was  "somewhat  limited,  though  plain  and  powerful."  Almost 
its  whole  strength  rests  on  a  single  verse,  of  very  questionable 
meaning.  Of  this  passage  (the  verse  just  quoted)  Dr.  Cheever 
said :  "It  is  the  citadel  of  our  argument,  commanding  and  sweep- 
ing the  whole  subject." 

Now  this  verse,  upon  which  such  momentous  powers  are 
rested,  may,  all  scholars  allow,  be  equally  well  translated  "by 
man  will  his  blood  be  shed,"  making  it  merely  a  prophecy,  as  "by 
man  shall  his  blood  be  shed,"  making  it  a  command.  So  that, 
as  The  North  American  Review  thirty  years  ago  suggested, 
this  tremendous  power  claimed  rests,  not  only  on  a  single  verse, 
but  on  a  single  word,  and  that  word  equivocal  in  its  meaning. 

Again,  our  translation  says,  "by  man  shall  his  blood  be  shed." 
But  "no  version  of  the  Bible  prior  to  the  fifth  century  contains 
the  words  *by  man,'  and  Scripture  itself  has  been  interpolated  to 
suit  the  purposes  of  the  state."  C Eclectic  Review,"  July,  1849.) 
The  Septuagint  and  the  Samaritan  versions  omit  these  words; 
Wycliffe  also,  and  the  Vulgate;  Spanish,  Italian,  and  French 
versions  omit  them.  Pascal  and  Swedenborg  indorse  the  omis- 
sion, and  Calvin  calls  the  translation  which  renders  the  Hebrew 
text  "by  man,"  a  "forced"  construction. 

If  these  authorities  are  reHed  upon,  the  verse  will  read: 
"Whoso  sheddeth  man's  blood,  his  blood  will  (or  shall)  be  shed," 
and  the  idea  of  a  command  becomes  more  uncertain  and  shadowy 
still,  since  "shall"  in  such  connection  is  not  necessarily  a  com- 
mand. For  instance :  "All  they  that  take  the  sword  shall  perish 
with  the  sword."  Is  this  a  command  to  kill  all  soldiers?  "Bloody 
and  deceitful  men  shall  not  live  out  half  their  days."  Are  such 
bidden  to  kill  themselves?  "Whoso  diggeth  a  pit  shall  fall  there- 
in."    Is  this  a  command? 

Call  this  equivocal  verse  in  Genesis  a  warrant  from  the  Al- 
mighty! Why,  a  county  sheriff  would  not  arrest  a  sheep-thief 
on  so  ambiguous  a  warrant. 

Second.     But  the  contemporaneous  understanding  of  a  law  is 


CAPITAL    PUNISHMENT  125 

of  the  highest  authority.  Now,  if  this  verse  be  a  command, 
that  every  murderer  shall  die,  it  is  remarkable  that  neither  did 
he  who  gave  it  conform  to  it,  nor  did  any  of  his  creatures  obey 
it,  in  the  most  s.triking  instances  of  murder  that  have  taken 
place.  Cain  was  a  murderer  at  the  time  when  the  idea  of  a  mur-  / 
derer  at  large  and  unrestrained,  in  a  world  with  very  few  in- 
habitants, must  have  been  fearful.  Yet  God  allowed  him  to  live. 
Lamech,  also  a  murderer  before  the  flood,  was  spared.  After 
the  flood,  Moses,  a  murderer  was  admitted  to  the  immediate 
presence  of  the  Highest,  and  David,  the  most  atrocious  of  mur- 
derers, was  still  the  "sweet  psalmist  of  Israel,"  dying  in  "a  good 
old  age,  full  of  days,  riches,  and  honor."  Indeed,  all  the  great 
murderers  in  Jewish  history — Absalom,  Siineon,  Levi,  and  the 
rest — did  not  have  their  "blood  shed"  but  died  in  battle  or  in  their  n^ 
beds. 

Third.  The  most  ardent  advocate  of  capital  punishment,  as 
said  to  be  ordered  by  this  covenant  with  Noah,  does  not,  and 
never  would,  undertake  to  obey  it.  No  civilized  government, 
would  obey  it,  or  ever  did.  For  if  this  be  a  law- of  God,  bind- 
ing on  all  men,  in  all  ages  and  in  all  circumstances,  then  it 
admits  of  no  change  and  no  exceptions. 

This  command,  if  it  be  one,  was  given  before  governments 
existed — given  then  to  individuals.  The  nearest  of  kin — "the 
avenger  of  blood,"  as  the  Old  Testament  phrases  it — was  to  exe- 
cute this  sentence  of  death — as  he  usually  did  in  ancient  times, 
and  especially  under  the  Jewish  law,  where  Moses  recognized  his 
right  to  do  so.  It  is,  then,  the  duty  now  of  the  nearest  of  kin 
to  avenge  the  killing,  without  waiting  for  the  action  of  any 
government,  which  can  never  release  an  individual  from  obey- 
ing a  command  of  God  issued  to  him.  We  are  not  allowed  to 
substitute  another  in  our  place  to  carry  out  an  order  which  the 
divine  law  issues  to  us.  Nothing  can  excuse  us  from  personal 
obedience.  And  especially  if  government  acquits  the  man  whom 
the  nearest  of  kin  considers  guilty,  which  is  so  often  the  case, 
then  the  "avenger"  under  this  law  must  act  on  his  own  con- 
science, and  do  the  duty  which  the  government  has  failed  to  do. 
Where  can  we  find  any  warrant  for  saying  that  now,  since  gov- 


126  SELECTED  ARTICLES 

ernment  exists,  the  "avenger"  is  released  from  a  duty  which  this 
solemn  command  of  God  laid  on  him?  Even  Moses,  much  as  he 
changed  old  customs,  did  not  take  from  the  "avenger"  this  right 
to  slay.  Hence,  what  we  call  "lynch  law"  becomes  a  religious 
duty  and  a  divine  ordinance. 

Further,  we  must  kill  every  beast  that  kills  a  man ;  we  must, 
as  the  Jews  now  do,  kill  all  animals  in  such  a  manner  as  to 
avoid  eating  "blood."  Even  the  apostles,  when  they  released  the 
Gentile  world  from  the  heaviest  of  Jewish  burdens,  still  insisted 
on  their  obeying  this  part  of  the  Noachian  covenant,  to  "eat  no 
blood."  Yet  Christians  have  quietly  ignored  it,  and  the  apostles' 
indorsement  of  it  also.  But  the  command  to  shed  the  blood  of 
the  man-killer  is  no  more  sacred  a  part  of  that  covenant  than 
this  of  "eating  no  blood."  And  yet  any  man  who  preached  the 
observance  of  such  a  nicety  to-day  would  be  laughed  at. 
/  Any  man  who  kills  another  by  accident,  without  intention  to 

harm  him,  must  be  killed.  No  matter  what  be  the  extenuating 
circumstances  of  any  killing,  no  man  or  government  is  author- 
.  ized  to  pardon,  but  the  strict  law  must  be  fulfilled  in  every  case, 
and  in  all  circumstances ;  the  soldier  who  kills  another  in  war 
must  die ;  the  insane  man  who  sheds  blood,  and  the  man  who 
\      in  self-defense  kills  his  assailant,  forfeit  their  lives,  etc.,  etc. 

Do  you  object  and  say,  "Oh,  no;  we  must  construe  the  com- 
mand, not  as  it  was  construed  then,  but  as  the  circumstances 
of  our  day  and  our  light  demand?"  Exactly;  well,  we  will 
meet  you  on  that  ground,  and  cheerfully  give  the  supposed  com- 
mand all  the  weight  in  present  legislation  which  we  think  it 
ought  to  have.  Do  you  remind  us  that  Moses  allowed  one  who 
had  shed  blood  accidentally,  or  without  malice,  to  flee  to  a  city  of 
refuge — and  as  long  as  he  staid  there  the  "avenger"  could  not 
harm  him? 

Very  true.  Moses  then  felt  justified  in  making  exceptions 
to  this  command,  if  it  were  such ;  after  the  lapse  of  a  thousand 
years,  and  when  change  of  conditions  and  established  govern- 
ment, and  improved  civilization  allowed  it. 

Moses  set  us  a  good  example ;  and  now,  after  thirty-five  hun- 
dred more  years  of  growth,  and  a  still  more  entire  change  of 


CAPITAL    PUNISHMENT  127 

condition,  and  far  greater  improvement  of  civilization,  and  the 
opening  of  a  new  dispensation,  which  abrogates  the  "eye  for  eye, 
and  tooth  for  tooth,"  we  take  example  by  the  great  Hebrew  re- 
former, and  conform  methods  to  our  day  and  needs,  seeking 
only  to  keep  sacredly  to  the  idea  and  spirit  which  underlie  the 
wise  and  humane  records  of  inspiration. 

When  any  supporter  of  capital  punishment,  on  the  ground  of 
the  Noachian  covenant,  eats  no  beef  except  that  which  is  killed 
according  to  the  present  Jewish  method;  insists  on  the  slaying 
of  every  animal  that  has  caused  a  man's  death;  and  on  the 
killing,  by  government  or  the  avenger,  of  every  man  who  has 
even  accidentally  killed  his  fellow,  I  shall  think  he  really  and 
honestly  believes  in  the  argument  he  uses.  I  never  found  any 
such  man.  Until  I  do,  I  am  forced  to  believe  that  such  dis- 
putants deceive  themselves,  and  imagine  that  they  cherish  such  a 
faith ;  but  any  endeavor  to  carry  it  into  action  would  rouse  their 
contempt  or  their  heartiest  indignation. 

Fourth.  The  moment  we  quit  the  plane  of  divine  command, 
and  come  down  to  the  level  of  human  law,  the  argument  as- 
sumes an  entirely  different  shape.  The  first  question  is,  has  the 
police  power  in  any  circumstances,  or  for  any  reason,  the  right 
to  take  life?  We  may  say,  with  Beccaria,  Fayette,  and  Frank- 
lin :  "The  power  over  human  life  is  the  sole  prerogative  of 
him  who  gives  it.  Human  laws,  therefore,  are  in  rebellion 
against  this  prerogative  when  they  transfer  it  to  human  hands." 

Or  even  with  Blackstone,  a  much  narrower  and  more  timid 
mind :  "Life  is  the  immediate  gift  of  God  to  man,  which  neither 
can  he  resign,  nor  can  it  be  taken  from  him,  unless  by  the  com- 
mand of  him  who  gave  it." 

But  this  argument  is  too  large  for  our  narrow  limits.  Any 
one  interested  in  it  can  see  the  subject  exhaustively  discussed, 
and  the  right  denied  for  the  soundest  and  strongest  reasons,  in 
the  essays  of  Franklin,  Beccaria,  Livingston,  Burleigh,  Rantoul, 
and  O'Sullivan. 

Even  those  who  claim  that  government  does  possess  the  right, 
have  been  driven  by  stress  of  argument  and  the  most  convincing 
experience  to  agree  with  Dr.   Cheever,  that  the  death  penalty 


/ 


% 


128  SELECTED  ARTICLES 

should  be  "restricted  to  murder" — not,  as  in  centuries  gone  by, 
be  visited  on  trifling  offenses,  from  a  mistaken  idea  that  mere 
severity  of  punishment  prevented  crime.  But  even  if  we  re- 
strict the  punishment  of  death  to  murder  alone,  when  we  re- 
member our  experience  that  the  infliction  of  the  death  penalty 
nourishes  the  spirit  of  revenge,  demoralizes  the  community  (a 
fact  confessed  by  the  now  almost  universal  custom  of  private 
executions),  lessens  the  sacredness  of  human  life,  largely  pre- 
vents the  prosecution  and,  to  a  great  extent,  the  punishment  of 
crime,  it  becomes  evident  that  you  must  prove  the  death  penalty 
absolutely  necessary  before  government  is  justified  in  using  it. 
No  amount  of  expediency  will  authorize  "breaking  into  the 
bloody  house  of  life"  at  the  risk  of  such  evil  results.  The  opin- 
ion of  old  Sam.  Johnson,  that  unnecessarily  severe  punishment 
"very  rarely  hinders  the  commission  of  crime,  but  naturally  and 
commonly  prevents  its  detection" ;  of  Chief -Justice  Den  man,  that 
extreme  severity  has  "operated  more  as  a  preventive  to  prosecu- 
tions than  as  a  preventive  to  crime";  of  Whately,  that  the  pun- 
ishment which  a  community  deems  too  severe  leads  the  very  suf- 
ferers by  a  crime  "to  promote  the  escape  of  the  guilty," — all  these 
testimonies  get  fresh  support  from  the  memorial  of  the  Attorney- 
general  of  Massachusetts  to  the  legislature  in  1842,  when  Massa- 
chusetts punished  only  six  crimes  with  death : 

In  the  present  state  of  society  it  is  no  longer  an  abstract 
question  whether  capital  punishment  is  right,  but  whether  it  is 
practicable;  and  there  is  good  reason  to  believe  that  the  punish- 
ment of  death  for  crime  would  more  certainly  follow  the  commis- 
sion if  the  legislature  should  still  farther  abrogate  the  penalty  of 
death.  As  the  law  now  stands,  its  efficacy  is  mostly  in  its  threat- 
enings;  but  the  terror  of  trial  is  diminishing,  and  the  culprit  finds 
his  impunity  in  the  severity  which  it  denounces. 

Now,  that  capital  punishment  is  not  absolutely  necessary  for 
the  protection  of  society,  in  almost  any  epoch  of  civilization,  is 
proved  by  the  amplest  testimony.  Egypt,  for  fifty  years  during 
the  reign  of  Sabacon ;  Rome  for  two  hundred  and  fifty  years; 
Tuscany  for  more  than  twenty-five  years ;  Russia  for  twenty  years 
of  the  reign  of  Elizabeth,  and  substantially  during  the  reign 
of  her  successor,  Catherine;  Sir  James  Mackintosh  in  India  for 
seven  years;  the  state  of  Rhode  Island  since  1852;  Michigan 
since  1847;  Wisconsin;  Maine  since  1835;  Holland  since  1870; 


CAPITAL    PUNISHMENT  129 

Saxony  since  1868;  Belgium  since  1831 ;  and  several  other  states, 
prove,  by  their  experience,  that  life  and  property  are  safer  with 
no  death  penalty  threatened  or  inflicted,  than  in  the  neighbor- 
ing countries  which  still  use  the  death  penalty.  The  evidence  is 
ample  and  demonstration  perfect;  the  plea  that  this  fearful 
penalty  is  necessary  is  no  longer  admissible.  Facts  annihilate 
its  foundations.  And  observe  that  every  such  experiment  has 
succeeded.  The  weight  of  this  evidence  is  not  lessened  by  the 
necessity  of  balancing  some  failures  against  other  successes. 
All  the  tracks  lead  one  way.  And  if  not  absolutely  necessary, 
the  death  penalty  must  be  extremely  injurious.  All  experience  / 
confirms  the  universal  judgment  of  those  who  have  studied 
this  subject,  and  which  Rantoul  utters  when  he  says,  "The 
strongest  safeguard  of  life  is  its  sanctity;  and  this  sentiment 
every  execution  diminishes."  Indeed,  unless  the  death  penalty 
can  be  shown  to  be  absolutely  necessary,  it  has  been  well  said 
that  society,  in  inflicting  it,  commits  a  second  murder. 

The  number  of  persons  sent  to  execution  by  the  courts,  and  / 
afterward  proved  to  be  innocent,  has  been  counted  by  hundreds 
in  Great  Britain,  and  must  probably  be  counted  by  thousands, 
taking  in  even  only  the  civilized  states.  When  we  add  those  I 
probably  innocent,  but  never  clearly  proved  so,  and  thus  run  up  the 
number  to  tens  of  thousands,  what  fearful  power  such  a  fact 
gives  to  the  protest  of  Lafayette :  "I  shall  persist  in  demanding 
abolition  of  the  punishment  of  death,  until  I  have  the  infallibil- 
ity of  human  judgment  demonstrated  to  me." 

A  few  such  instances,  even,  in  a  century  are  sufficient  to 
counteract  tlie  best  effects  that  could  be  derived  from  example. 
There  is  no  spectacle  that  takes  such  a  hold  on  the  feelings  as  that 
of  an  innocent  man  suffering  an  unjust  sentence.  One  such  ex- 
ample is  remembered  when  twenty  of  merited  punishment  are 
forgotten,  the  best  passions  take  part  against  the  laws,  and  ar- 
raign their  operation  as  iniquitous  and  inhuman.  This  considera- 
tion, alone,  then,  if  there  were  no  others,  would  be  a  most  power- 
ful argument  for  the  abolition  of  capital  punishment. — Livingston. 

The  "terror  argument" — the  idea  that  any  punishment,  cap- 
ital or  any  other,  deters  men,  in  any  useful  or  appreciable  degree, 
from  the  repetition  or  imitation  of  crime — is  discredited  by  the 
best  authorities.  In  a  remarkable  correspondence,  forty  years 
ago,   between  Lords   Brougham   and  Lyndhurst,   it   is   assumed, 


I30  SELECTED  ARTICLES 

on  the  authority  of  all  the  police  magistrates  of  Great  Britain, 
that  this  idea  of  terror  from  example  is  a  delusion,  and  that  the 
expectation  of  relief  from  that  influence  must  be  abandoned. 

Analyzed  to  its  last  result,  this  attachment  to  the  death  pen- 
alty will  be  found,  in  most  cases,  to  be  really  a  feeling  of 
revenge.  All  close  inquirers  find  it  to  be  so.  Livingston  records 
a  remarkable  confession  of  it  made  to  himself.  Sir  H.  S.  Maine 
says  (in  his  "Ancient  Law")  :  "There  is  a  time  when  the  attempt 
to  dispense  with  it  (i.e.,  the  death  penalty)  balks  both  of  the 
two  great  instincts  which  lie  at  the  root  of  all  penal  law.  With- 
out it  the  community  neither  feels  that  it  is  sufficiently  avenged 
on  the  criminal,  nor  thinks  that  his  punishment  is  adequate  to 
deter  others  from  imitating  him." 

When  we  remember  that  it  has  been  proved,  by  the  most 
abundant  and  trustworthy  evidence,  that  "the  greater  proportion 
of  crime  is  the  result  of  poverty  and  early  privations";  that  the 
wisest  experts  agree  that  "in  by  far  the  greater  proportion  of 
offenses  crime  is  hereditary" ;  that  one-half,  perhaps  two-thirds, 
of  those  who  take  life  are  flagrant  instances  of  society's  gross 
neglect  in  educating  the  souls  God  commits  to  its  keeping; 
inherit  ungovernable  passions  and  minds  just  hovering  on  the 
borders  of  insanity,  if  not  wholly  insane  and  irresponsible;  that, 
as  Dr.  Prichard  says,  "The  difficulties  with  which  administrators 
of  public  justice  have  to  contend  in  distinguishing  crimes  from 
the  result  of  insane  impulse  will  never  be  entirely  removed," — 
this  malignant  feeling  of  revenge  toward  most  criminals  becomes 
ferocious  and  brutal. 

Mr.  Clay,  the  veteran  and  well-known  chaplain  of  Preston 
Gaol,  denounced  as  "selfish  cowardice  this  cry  for  indiscrimi- 
nate vengeance  on  all  sorts  and  conditions  of  criminals — as  if  the 
comfort  and  ease  of  self-asserting  respectability,  riding  para- 
mount on  the  surface  of  society,  was  altogether  to  outweigh 
the  rights,  temporal  and  eternal,  of  the  helpless,  inarticulate 
mass  below." 

Bulwer  reminds  us  that  "Society  has  erected  the  gallows  at 
the  end  of  the  lane,  instead  of  guide  posts  and  direction  boards 
at  the  beginning." 


CAPITAL    PUNISHMENT  131 

And  Dr.  William  Ellery  Channing  says,  in  the  same  strain, 
"When  I  reflect  how  much  of  the  responsibility  for  crime  rests 
on  the  state,  how  many  of  the  offenses  which  are  most  severely 
punished  are  to  be  traced  to  neglected  education,  to  early  squalid 
want,  to  temptations  and  exposures  which  society  might  do  much 
to  relieve,  I  feel  that  a  spirit  of  mercy  should  temper  legislation ; 
that  we  should  not  sever  ourselves  so  widely  from  our  fallen 
brethren ;  that  we  should  recognize  in  them  the  countenance 
and  claims  of  humanity ;  that  we  should  strive  to  win  them  back 
to  God." 

It  is  evident  from  the  tone  of  the  press,  from  the  excitement 
and  bitterness  we  see  everywhere  in  the  community,  and  from 
the  very  language  of  one  of  my  comrades  in  this  discussion, 
that  the  feeling  against  Guiteau  is  one  of  revenge,  rather  than 
a  cool  and  dispassionate  care  for  the  safety  of  society. 

This  pitiable  and  misbegotten  wreck,  who  is  only  just  within, 
if  indeed  he  be  within,  the  limits  of  moral  responsibility,  and 
who  could  not  probably  be  proved  the  direct  cause  of  the 
President's  death,  to  the  satisfaction  of  any  jury  assembled  one 
year  or  twenty  months  hence, — if,  carried  away  by  hot  revenge, 
the  people  hang  him,  it  will  be  a  blot  on  the  justice  of  the  Amer- 
ican people  which,  probably  within  five  years  men  would  do 
anything  to  erase,  and  which  history  will  record  as  one  of  the 
most  lamentable  instances  of  temporary  madness,  or  as  evidence 
how  much  of  actual  barbarism  lingers  in  the  bosom  of  an  intel- 
ligent and  so-called  Christian  community. 

Public.  10: 102-3.  May  4,  1907. 

Capital   Punishment.    Abram  E.  Adelman. 

If  it  can  be  supposed  that  a  capital  crime  has  ever  been 
committed  with  full  premeditation  of  consequences,  the  very 
fact  of  its  commission  is  proof  that  the  threatened  death  penalty 
is  not  a  deterrent.  How  foolish,  then,  to  suppose  that  even  this 
extreme  penalty  can  lessen  or  prevent  such  offenses.  Instead 
of  deterring  crime,  it  actually  incites  to  crime. 


132  SELECTED  ARTICLES 

Nothing  will  ever  make  life  and  womanhood  secure  but  a 
strong  popular  sense  of  their  sacredness  under  all  circumstances. 
This  is  the  reason  there  are  no  crimes  among  the  Quakers,  the 
Moravians  and  other  non-resistant  sects. 

But  does  the  state  cultivate  among  the  people  the  idea  of  the 
sacredness  of  life  when  it  kills  the  criminal?  Would  it  foster 
respect  for  womanhood  by  reverting  to  the  same  barbarism? 

Manifestly  not. 

It  is  well  known  that  wars,  by  fostering  contempt  for  human 
life,  are  invarial)ly  followed  in  countries  emerging  from  them 
by  long  series  of  murders. 

When  executions  were  public,  children  who  had  witnessed 
them  were  often  known  to  torture  and  kill  their  pet  animals 
thereafter  and  even  to  torture  one  another.  Such  executions 
were  always  followed  by  a  carnival  of  crime  in  which  there 
was  usually  at  least  one  that  resembled  the  offense  that  had 
just  been  capitally  punished.  There  are  many  cases  proving 
this   fact  in  criminal  annals. 

Nothing  is  stronger  to  the  criminal  mind,  which  is  essentially 
a  diseased  mind,  than  the  power  of  suggestion.  Doubtless  this 
explains  the  recorded  cases  of  men  confessing  to  crimes  they 
have  never  committed.  In  a  famous  case  in  Vermont  the  con- 
fession was  to  a  murder  which  had  never  been  committed  at 
all,  and  the  man  who  made  it  was  saved  from  hanging  only  by 
the  timely  appearance  in  full  bodily  vigor  of  his  supposed  vic- 
tim. 

The  brutalizing  effects  of  public  executions  on  the  community 
came  at  length  to  be  noticed.  For  this  reason  public  execu- 
tions have  been  abolished  in  civilized  countries,  and  now  the 
execution  of  the  criminal  is  in  most  places  strictly  private. 
By  this  concession  the  advocates  of  capital  punishment  have 
impliedly  abandoned  the  ground  that  the  spectacle  of  the  crim- 
inal's punishment  is  a  deterrent,  and  have  admitted  it  to  be 
rather  an  incitement  to  crime.  But  the  modern  news  facilities 
give  to  private  executions  all  the  demoralizing  effects  of  public 
executions.  It  is  notorious,  for  instance,  that  after  the  execu- 
tion of  the  reckless  "car-barn  bandits"  at   Chicago,   numerous 


CAPITAL   PUNISHMENT  133 

gangs  of  young  men  of  the  "car-barn-bandit"  caliber  had  to  be 
broken  up.  Several  of  their  members  are  now  in  the  peniten- 
tiary. 

No  advocate-  of  capital  punishment  would  to-day  defend 
it  on  the  basis  of  revenge.  The  sole  defense  of  it  at  this  day 
is  that  it  is  a  deterrent  of  crime.  But  the  deterrent  argument 
is  being  knocked  away  by  hard  facts,  and  the  advocates  of  cap- 
ital punishment  find  themselves  driven  back  to  the  primeval  the- 
ory of  bloody  revenge.  With  most  of  them  this  is  really  the 
instinctive  basis  of  their  belief  in  the  gallows,  although  they 
usually  deny  it.  But  be  their  arguments  and  motives  what  they 
may,  it  is  a  confession  of  weakness  to  say  that  public  security 
demands  the  death  of  any  member  of  society. 

The  above  arguments  show  the  inexpediency  of  the  death 
penalty  as  a  means  of  protecting  the  state  and  its  peaceable 
citizens.  To  those  who  believe,  however,  in  abstract  right  aside 
from  physical  force,  there  may  be  adduced  a  further  argument. 

Society  has  no  right  to  take  human  life.  The  state  itself 
would  deny  the  right  to  any  organization  within  it,  however 
large,  to  take  the  life  of  its  own  members  in  accordance  with  \' 

its  own  rules.  Then  how  can  it  be  supposed  that  adding  enough 
other  persons  to  make  a  state,  gives  to  this  greater  number  that 
right  to  kill  which  a  lesser  number  cannot  claim  ?  Mere  numbers 
can  never  make  a  wrong  thing  right. 

By  the  death  penalty  society  violates  one  of  the  fundamental 
natural  laws  by  which  it  governs  the  conduct  of  its  individual 
members,  namely,  the  natural  law  Hmiting  the  right  of  homicide 
in  self-defense.  I  may  take  another's  life  only  when  I  am 
attacked  by  him  and  in  imminent  danger  of  my  own  through  ^^ 

that  other's  acts.  Should  he  be  advancing  upon  me  with  a  deadly 
weapon  and  "murder  in  his  eye,"  and  I  have  no  means  of  escape, 
the  laws  justify  my  killing  him.  But  whatever  the  danger,  if  I 
overcome  my  adversary,  and  let  us  say,  have  him  lying  prostrate 
at  my  feet  or  bound  hand  and  foot — if  I  then  kill  him,  society 
does'  not  justify  or  excuse  me.  I  am  in  such  case  guilty  of 
murder.  Is  it  not  time,  then,  to  realize  that  when  society  has 
the  criminal  bound  hand  and  foot,  as  it  were,  it  violates  its  own 


134  SELECTED  ARTICLES 

law  of  self-defense  if  it  kills  him?  Could  I  say  to  society,  if  I 
were  charged  with  murder,  "It  is  -true  I  had  my  adversary  'down 
and  out,'  but  I  had  to  kill  him,  because,  if  I  had  not  others  as 
maliciously  disposed  to  me  as  he,  would  have  assailed  and  killed 
me"?  Of  course  not.  But  this  is  exactly  the  "baby  act"  which 
society  pleads  when  it  takes  a  convict's  Hfe. 

The  killing  of  a  human  being  in  hot  Wood  is  deplorable 
enough.  But  such  an  act  cannot  be  compared  in  barbarity  to 
the  deliberate,  cold-blooded  killing  which  capital  punishment 
inflicts.  It  is  a  barbarity  that  must  surely  disappear  from  the 
earth  before  an  advancing  civilization. 


Putnam's  Magazine.  13:225-35.  February,  1869. 

Gallows  in  America. 

Our  foremost  plea  is  the  baneful  and  demoralizing  effect 
upon  society  of  the  means  resorted  to  for  its  protection.  We 
would  put  an  end  to  capital  punishment,  for  the  sake  of  the 
law-abiding  classes;  just  as  the  abolition  of  slavery  was  wisely 
urged  for  the  benefit  of  the  white  man.  Death  may  be  a  mur- 
derer's desert,  but  for  the  sake  of  the  community  let  us  recon- 
sider this  usage  of  inflicting  it-V^^hether  "the  worst  use  you 
can  put  a  man  to"  is,  or  is  not,  "to  hang  him,"  the  worst  use 
to  which  society  can  put  itself  is  the  office  of  the  executioner.'^ 

Review  of  Reviews.  21:  608.  May,  1900. 

Is  Capital  Punishment  Justified?       E.  B.  McGilvary. 

The  inaugural  address  of  Dr.  E.  B.  McGilvary  as  Sage  Pro- 
fessor of  Moral  Philosophy  at  Cornell  University,  on  the  subject 
of  "Society  and  the  Individual"  is  published  in  the  Philosophical 
Review  for  March.  In  the  course  of  this  address  Professor 
McGilvary  discusses  the  general  question  of  punishment  and 
its  justification  in  human  society.  Considering  the  problem  from 
the  culprit's  point  of  view,  as  well  as  from  that  of  the  com- 


CAPITAL    PUNISHMENT  13S 

munity,  Professor  McGilvary  defines  punishment  as  "the  calm, 
cool,  relentless  expression  in  outer  act  of  the  fuller  completer 
social  self  against  the  narrower  passionate  self  which  in  the 
act  of  offense  tries  to  assert  its  independence.  No  man  feels 
that  he  is  really  punished  except  when  he  accepts  the  punishment 
as  just  what  he  himself  in  his  saner  mood  would  do  to  his  in- 
surrectionary self.  If  the  retaliation  is  not  approved  by  the 
offender  he  calls  it  affront,  indignity,  outrage, — anything  but 
punishment.  >  > 

Why  Should  the  Mui'derer's  Blood  he  Shed? 

"In  the  extreme  case  of  capital  punishment,  it  seems  to  be 
too  much  of  a  heartless  paradox  to  say  that  the  execution  is 
for  the  criminal's  own  good  or  in  order  to  make  him  good.  But 
I  think  that  without  the  flippancy  which  expresses  itself  in  the 
proverb,  'only  dead  Indians  are  good  Indians,'  we  can  truly  and 
seriously  maintain  that  we  kill  some  persons  to  make  them 
good.  This  end,  however,  is  not  to  be  realized  after  their  death, 
but  before  it.  Apart  from  any  outlook  upon  a  possible  future  life 
— a  consideration  which  is  not  pertinent  here — the  coming  of  the 
murderer  to  himself  in  the  prospect  of  the  gallows ;  his  recog- 
nition of  the  enormity  of  his  offense,  not  against  an  external 
society,  but  against  the  interests  of  his  better  self,  which,  if  he 
had  only  seen  it,  included  the  life  and  welfare  of  his  victim; 
the  sad  but  manly  avowal  that  he  has  put  himself  by  his  act 
into  such  a  position  that  the  only  way  to  save  himself,  to  redeem 
himself,  to  re-establish  the  harmony  he  has  so  rudely  marred — 
not  a  harmony  outside  himself,  but  his  own  harmony  in  his 
adjustment  to  a  social  environment  that  enters  into  the  very 
constitution  of  his  personality — all  this  result,  I  say,  and  nothing 
short  of  this  result,  will  justify  the  shedding  of  a  murderer's 
blood.  The  preservation  of  the  external  order  may  necessitate 
the  execution,  but  necessitation  and  justification  are  two  very 
different  things.  Into  this  difference,  however,  we  cannot  go 
at  present. 

"Experience  seems  to  teach  us  that  with  man  constituted  as 
he  now  is — and  we  are  not  speaking  of  what  Mr.  Spencer  calls 


x 


136  SELECTED  ARTICLES 

'the  straight  man,'  'an  ideal  social  being,'  for  we  know  none 
such,  and  could  not  recognize  him  if  we  did — experience  seems 
to  show  that  the  only  way  in  which  the  murderer  can  be  brought 
to  himself  is  by  the  instrumentality  of  the  death  penalty. 

"But  while  all  this  is  true,  it  is  also  true  that  the  callousness 
of  a  certain  class  of  persons  toward  the  criminal  is  inhumane. 
From  the  time  that  the  sentence  of  death  is  passed,  some  men 
seem  to  regard  the  convict  not  as  a  person  to  be  brought  to 
recognize  the  meaning  of  his  deed  and  of  his  execution,  but 
as  a  dangerous  animal  kept  for  slaughter.  It  is  just  such 
an  attitude  that  has  led  by  reaction  to  the  hysterically  tender 
hearted  treatment  of  the  criminal.  Both  extremes  should  be 
avoided." 


Review  of  Reviews.  40:219-20.  August,  1909. 
Does  Capital  Punishment  Prevent  Convictions? 

Among  the  many  perspicacious  utterances  of  the  late  Henry 
Ward  Beecher  none  was  truer  than  his  observation  that  "while 
the  fear  of  hanging  does  not  deter  men  from  crime  the  fear  of 
inflicting  death  deters  many  a  jury  from  finding  a  just  verdict 
and  favors  the  escape  of  criminals."  This  is  cited  by  Mr.  Maynard 
Shipley  in  an  article  in  tht  American  Law  Review  for  May-June, 
in  the  course  of  which  he  presents  some  figures  and  opinions 
which  tend  to  show  that  the  sooner  capital  punishment  is  abol- 
ished altogether  the  sooner  justice  will  come  into  her  own. 

With  regard  to  the  states  which  still  retain  capital  punish- 
ment, Mr.  Shipley  cites  the  opinions  of  a  number  of  prominent 
men,  all  in  favor  of  the  abolition  of  the  death  penalty.  Of  these 
we  summarize  a  few : 

Massachusetts. — Representative  Thomas  L.  Davis,  speaking  for 
alolition.  said:  "A  jviry  drawn  on  a  murder  trial  is  often  so  awed 
by  the  responsibility  placed  upon  them  that  rather  than  render 
a  verdict  that  will  take  the  man's  life,  for  fear  there  is  a  faint 
possibility  that  he  is  innocent,  although  they  knoAv  that  he  isn't, 
will  disagree  or  bring  in  a  verdict  of  not  guilty."  Mr.  William 
I.loyd  Garrison  said:  "This  horror  of  inflicting  the  death  penalty 
makes  juries  violate  their  oaths."  Of  104  persons  Indicted  for 
murder  in  1901-7,  six  only  were  convicted  of  murder  in  the  first 
degree. 


CAPITAL    PUNISHMENT  I37 

New  Yoik.— The  late  Edmund  Clarence  Stedman  in  1869  said 
that  "there  was  among  jurymen  and  justices  so  strong  a  repug- 
nance to  taking  human  life  that  it  had  become  doubly  difficult  to 
convict  a  prisoner  on  the  charge  of  murder." 

Connecticut.— Prof.  William  B.  Bailey,  of  Yale,  wrote:  Courts 
of  law  are  fallible,  and  the  consciousness  of  this*  fallibility  Is  ever 
present  in  the  minds  of  the  juries.  There  are  many  cases  in  which 
a  jury  is  unwilling  to  convict  when  death  is  to  ensue  w^hen  they 
might  be  more  willing  to  sentence  a  man  to  life  imprisonment." 

Labor  unions  generally  oppose  the  death  penalty.  Mr.  John  J. 
Fitzpatrick,  president  of  the  Chicago  Federation  of  Labor,  when 
a  candidate  for  the  office  of  sheriff,  said :  "Organized  labor  every- 
where stands  for  the  aboHtion  of  capital  punishment,  and  if  I 
am  elected  sheriff  I  will  do  my  best  to  further  this  civilized 
reform.  I  never  have  taken  human  life  and  do  not  intend  to, 
even  if  my  act  would  be  sanctioned  by  law."  A  member  of  the 
Stationary  Engineers'  Union  was  expelled  "because  he  proposed 
that  the  number  of  capital  crimes  be  increased." 

There  are  perhaps  some  who  agree  with  Prof.  John  Dewey, 
of  the  Chicago  University,  that  there  may  be  circumstances  under 
which  the  death  penalty  is  necessary;  but  even  he  admits  that 
"where  the  moral  opinion  of  the  community  is  highly  developed 
and  where  scientific  penology  has  made  considerable  progress 
it  is  likely  to  be  more  harmful  than  helpful."  Prof.  S.  F.  Emer- 
son points  out  another  factor  tending  to  make  capital  punishment 
impracticable,  and,  indirectly,  leading  to  illogical  verdicts:  "Fail- 
ure to  convict  for  murder  is  largely  the  result  of  the  feeling  that 
society  is  measurably  responsible  foi   crime." 


Westminster  Review.  143:561-66.  May,  1895. 
Ought  Capital  Punishment  to  be  Abolished  ?    G.  Rayleigh  Vicars. 

In  this  paper,  we  intend  bringing  forward  the  arguments  in 
favour  of  the  retention  of  capital  punishment,  as  well  as  those 
against  the  extreme  penalty.  We  must  first  take  a  rapid  view 
of  the  practice  of  other  nations  in  this  matter.  For  my  details, 
I  am  indebted  to  Mr,  William  Tallack,  of  the  Howard  Associa- 
tion, London,  who  has  drawn  up  some  useful  papers  on  the 
subject. 


SELECTED  ARTICLES 


England 


1881 

11 

"   *•  23 

1882 

12 

' 22 

1883 

13   " 

"   "  23 

1884 

15   " 

38 

1885 

12 

•  25 

1886 

19   " 

..   ..  35 

1887 

21    " 

"  "  35 

1888 

22   " 

"  ••  36 

1889 

11   '-• 

' 20 

1890 

15   " 

"   "  24 

1891 

12   " 

"   "  19 

1892 

18   " 

"   ..  22 

This  table  will  give  a  general  idea  of  the  number  of  executions 
in  our  country.  We  now  pass  on  to  the  practice  of  other  civilised 
nations. 

France. — Taking  an  average  year,  viz.,  18S7,  270  convictions  of 
murder  were  recorded,  of  which  240  had  verdicts  of  "extenuating 
circumstances,"  28  were  condemned  to  death,  and  six  executed. 

Russia. — No  death  penalty  for  ordinary  murder,  but  employed 
for  treason  and  resistance  to  government. 
i  Finland. — Executions  unknown  since  1826. 
V  Germany  and  Austria. — In  Austria  about  four  per  cent  are 
executed  out  of  total  convictions. 

In  Germany,  out  of  231  capital  sentences  in  four  recent  years, 
less  than  8  per  cent  were  executed. 

Sweden,  Norway,  and  Denmark. — About  one  execution  in 
every  twenty  death  sentences. 

Switzerland. — In  some  Cantons,  there  have  been  no  executions 
for  fifty  years.  Capital  punishment  was  abolished  in  all  Switzer- 
land in  1874,  but  restored  in  1879,  since  which  date  no  executions 
have  occurred. 

India. — Capital  punishment  exists. 

Holland. — Capital  punishment  has  been  abolished  since  1860! 

Belgium. — There  have  been  no  executions  since  1863.    . 

Italy. — Death  penalty  abolished  in  1889. 

Portugal. — Death  penalty  abolished  in  1867. 

"United  States. — There  are  four  states  in  which  there  is  no 
capital  punishment.  Tynelings  mostly  occur  in  states  where  the 
death  penalty  exists. 


CAPITAL    PUNISHMENT  139 

So  much,  then,  for  the  practice  of  various  civilised  nations. 
We  have  now  to  discuss  the  arguments  for  and  against  the  death 
penalty. 

jr^uments  in  favour  of  capital  punishment : 
(i)     It  is  the  most  dreaded  punishment,  and  feared  by  all. 
It  rids  society  of  criminal  pests  and  dangerous  savages. 
It  is  certaiFln  its  action,  and  cannot  fail. 
It  terrorises  the  masses  into  submission  to  law^. 
It  has  been  in  us^or  many  centuries  all  over  the  world. 
It  saves  the  cornmunity  all  cost  of  keeping  criminals  for 
many  years. 

(7)  It  was  of  common  occurrence  in  the  "good  old  times." 
and  was  witnessed  by  large  crowds,  thus  teaching  the  long  and 
strong  arm  of  the  law. 

(8)  Under  its  influence  crime  has  diminished. 

The  above  arguments  will  suffice,  as  being  fairly  represent- 
ative, arid  it  remains  for  us  to  severally  answer  them,  thus  form- 
ulating our  reasons  for  the  rejection  of  the  devssiorjenalty. 

(i)  It  is  the  most  dreaded  punishment, many  me-^d  by  all. —  . 
From  observation  of  the  criminal's  last  fe-murder,  but  sitate  not 
at  denying  this  statement.  At  the  tim  sane  because  he  anonvict, 
in  most  cases,  remains  unmoved.  Fiiumber  of  suicides  in-cv?n- 
there  may  be  a  certain  amoii'-:'i  ifrnporary  insanity  are  returned, 
Home  Secretary  seems. ticlusion  that  a  man  may  be  insane  at  the 
age  criminal  rests.x§  a  murder,  and  the  act  of  attempted  suicide 
the  fatal  morr>iroves  his  sanity,  else  our  coroners'  juries  must  be 
comes  the  .Tor.  Given  then,  the  difficulties  attendant  upon  an 
occur,  and.^stimate  of  mental  responsibility  in  murder  cases,  our 
ing  fact  clear  to  the  assertion  that^[the  death  penalty  is  too  certain 
that  the2vocable,  too  much  dependent  upon  human  judgment,  be 
culprit  so  experienced,  for  practical  application  in  a  civilised  com- 
oper?ty.)^ 

juf*(4)  It  terrorises  the  masses  into  submission  to  law. — We 
fail  to.  see  any  serious  argument  here  at  all.  As  a  matter  of 
fact,  at  a  time  when  the  masses  were  especially  troublesome, 
when  riots  were  of  common  occurrence,  executions  were  prolific 
in  number  and  in  public  places,  so  that  all  might  behold  the  maj- 


142  SELECTED  ARTICLES 

esty  of  the  law.  In  the  "good  old  times"  men  and  women  were 
hanged  for  many  offences  now  deemed  worthy  of  six  months' 
hard  labour,  yet  the  hanging  went  on  its  way,  unmolested  by  the 
state  and  in  high  favour  with  the  law,  as  each  week  saw  the  carts 
bearing  their  motley  loads  to  execution.  Many  a  highwayman 
was  hung  in  a  drunken  condition,  a  glorious  spectacle  of  legal 
triumph  and  penal  morality,  not  to  say  decency,  yet  the  roads 
continued  to  be  infested  with  these  pests. 

(5)  It  has  been  in  use  for  many  centuries  all  over  the 
world. — This  scarcely  constitutes  a  sound  argument  for  the  con- 
tinuation of  any  custom.  As  a  matter  of  fact,  the  death  penalty 
is  notjnow  in  vogue  all  over  the  world. 

/''^(6)  It  saves  the  community  all  cost  of  keeping  criminals  for 
many  years. — There  is  a  certain  amount  of  rude  truth  in  this 
assertion,  but  it  is  scarcely  one  of  humanity.  It  must  be  remem- 
bered that  convicts  certainly  earn  many  pounds  yearly,  though 
their  actual  cost  exceeds  their  profits.  That  this  should  be  is  not 
surprising,  bearing  in  mind  the  fact  that  a  great  number  of  the 
sentences  do  not  exceed  five  years,  and  many  are  but  three  years 
in  length.  Now  it  is  impossible,  owing  to  the  constantly  changing 
nature  of  the  prison  population,  to  ensure  prolonged  work  to  any 
extent,  for,  when  a  prisoner  is  really  useful,  he  goes  out  on  ticket 
of  leave.  With  life  sentences  the  cases  would  be  very  dif- 
ferent. Such  handicrafts  as  watchmaking,  advanced  printing 
and  lithographing  would  be  well  taught,  and  in  a  few  years  after 
admission  the  prisoners  would  become  experts,  and  their  earnings 
would  probably  exceed  their  cost  of  living.  Some  relaxation  of 
prevalent  discipline  would  be  desirable,  so  that  encouragement 
may  be  given  to  persevere.  Whether  this  project  ever  attains  ma- 
turity or  no,  one  fact  is  certainly  true,  and  it  is  that  convicts  can 
print  and  lithograph  very  well.  At  Wormwood  Scrubbs  prison, 
near  London,  a  great  deal  of  this  kind  of  work  was  efficiently 
done  some  years  ago.  There  can  be  no  doubt  whatever  but  that 
men  under  a  life  sentence  could  be  placed  in  a  position  to  earn 
the  cost  of  their  keep  and  a  good  margin  over  in  addition. 

(7)  It  was  of  common  occurrence  in  the  "good  old  times." 
and  was  witnessed  by  large  crowds,  thus  teaching  the  long  and 


CAPITAL    PUNISHMENT  143 

strong  arm  of  the  law. — We  have  already  dealt  with  this  axiom 
under  another  heading   (No.  4). 

(8)  Under  its  influence  crime  has  diminished. — There  is  no 
accurate  foundation  for  this  statement.  A  few  years  ago  the 
wave  of  crime  somewhat  diminished  in  force,  but  of  late  a  fresh 
wave  has  burst  upon  England,  which  still  continues,  especially 
in  large  cities  such  as  Liverpool.  From  communities  in  which 
capital  punishment  has  been  swept  away  reaches  us  the  prevail- 
ing opinion,  viz.,  that  murder  has  injno  way  increased  under  the 
new  system.  We  have  not  space  to  particularise  further,  but 
we  recommend  all  inquirers  to  read  the  sheets  published  by  the 
Howard  Association,  and  obtainable  from  Mr.  Tallack  (at  the 
offices  of  the  Association,  5  Bishopsgate  Street  Without,  E.  C), 
the  Secretary,  whose  work  we  believe  them  to  be. 

Now,  let  us  summarise  our  conclusions  briefly,  and  add  a  few 
suggestions. 

(a)  The  chief  objection  to  capital  punishment  lies  in  the 
irrevocability  of  the  same.  A  man  or  woman  can  be  recalled 
from  prison,  but  not  from  a  felon's  grave. 

(b)  It  is  always  difficult  to  accurately  gauge  the  mental  or 
moral  responsibility  of  a  murderer,  especially  in  those  very  nu- 
merous cases  where  the  motives  of  crime  are  jealousy,  a  condi- 
tion of  morbid  brooding  over  injuries,  and  unfounded  suspicions. 
Many  criminals  assert  that  they  heard  voices  directing  them  to 
commit  murder.    Who  can  say  whether  this  be  true  or  assumed? 

|A  life  sentence  in  all  cases  of  wilful  murder  would  enable  the 
prison  medical  officers  to  watch  these  men,  and  their  future  lib- 
erty would  depend  very  much  upon  the  medical  observation  and 
subsequent  reports.  If  malingerers,  then  there  is  the  convict  cell, 
if  insane,  then  there  is  a  special  ward  ready;  or  Broadmoor 
can  be  made  use  of.  The  obstacles  in  the  way  of  determining 
the  actual  mental  condition  of  many  murderers  at  the  time  of 
crime,  renders  hanging  a  very  dangerous  and  unjust  method  of 
punishment,  and  is  a  major  objection  to  the  same. 

(c)  We  would  advocate  the  abolition  of  capital  punishment 
and  as  a  substitute  make  use  of  brick  walls  and  strong  cells,  and 
in  these  the  convict  would  spend  the  greater  part,  if  not  the  whole, 


144  SELECTED  ARTICLES 

of  his  life,  engaged  in  profitable  occupation.  Verdicts  of  murder 
might  be  classified  under  two  heads,  as  first  and  second  degrees 
of  guilt.  For  the  former  the  sentence  would  be  an  unconditional 
detention  for  life ;  for  the  latter,  detention  from  twenty  to  thirty 
years,  the  present  system  of  marks  being  abolished,  and  ticket-of- 
leave  done  away  with.  A  special  prison  would  be  required,  built 
upon  the  lines  of  the  most  improved  American  -system,  and  into 
this  would  be  received  all  those,  male  and  female,  who  had  been 
convicted  of  wilful  murder.  Jn  case  of  protracted  misconduct,  the 
prisoner  would  be  removed  for  a  period  of  three  years  to  an  ordi- 
nary convict  prison,  there  to  undergo  the  usual  rigorous  discipline 
now  in  force.  Or,  during  the  first  three  years  of  the  sentence,  all 
convicts  might  be  sent  primarily  to  penal  servitude,  and  then  the 
removal  to  a  special  estabHshment  would  follow,  always  provid- 
ing that  the  conduct  has  been  good  during  the  three  years  of  pro- 
bation. This  proviso  would  ensure  satisfactory  discipline  in  the 
special  prison,  without  being  unduly  harsh,  bearing  in  mind  the 
indefinite  duration  of  the  sentence.  A  spirit  of  eclecticism  could 
do  much  in  the  choice  of  prison  system,  and  a  committee  of  visit- 
ors to  the  American  goals  would  be  a  step  in  the  right  direction, 
by  which  the  actual  selection  might  be  made. 

Westminster  Review.     155:  144-9.     February,  1901. 

Capital   Punishment :     Ineffectual  and   Mischievous. 

T.  M.  Hopkins. 

Reciprocity  in  murder  is  certainly,  if  calmly  considered,  an 
odd  policy;  it  does  violence  to  the  old  and  true  maxim  that 
two  wrongs  do  not  make  one  right. 

Westminster  Review.     168:  178-86.     August,   1907. 

Emotion  as  a  Law-Maker :    a  Sociological  Suggestion. 

G.  M.   Hort. 

Revenge  of  a  kind  has  left  its  stamp  on  the  penalty  we 
impose  on  murder; — not  so  much  the  revenge  of  private  feud, 


CAPITAL    PUNISHMENT  145 

as  a  sort  of  a  social  blood-thirstiness;  an  animus  felt  by  the 
whole  community  against  the  individual  who  had  violated  its 
peace.  None  will  deny  that  this  emotion  in  the  beginning  was 
a  natural  and  lawful  one;  that  it  even,  in  the  breasts  of  the 
men  who  felt  it,  indicated  a  moral  advance.  But  it  is  to  be 
regretted  that  this  natural  feeHng  was  allowed  too  hastily  to 
cool  and  crystallise  into  a  dogma,  and  that  our  death  penalty 
should  now  by  consequence,  despite  great  outward  dignity  and 
moral  symbolism,  retain  the  impress  of  a  more  savage  age  than 
ours. 

Strangely  enough,  though  much  mild  sentiment  has  been 
expended  from  time  to  time  in  the  cause  o'f  the  criminal,  the 
cause  of  him  whom  the  criminal  has  rendered  necessary  has 
scarcely  found  an  advocate ! 

Yet  the  hangman's  case  is,  to  the  clear-sighted,  actually  the 
more  pitiable  of  the  two.  He  must  be  a  very  high-minded  man, 
indeed,  if  he  does  not  morally  suffer  by  the  lack  of  moral 
support  and  the  sense  of  degradation  under  which  he  labours. 
Nor  are  these  things  of  the  senses  only.  There  is  much  in 
his  office  which  is  degrading  in  itself. 

It  is  indeed  surprising  that  so  far-seeing  and  prudent  a  folk 
as  the  English  usually  are,  should  have  tolerated  so  long  among 
them  the  rearing  of  a  series  of  individuals,  habituated  to  tak- 
ing human  life  in  cold  blood,  to  taking  it  from  unresisting 
persons,  and,  above  all,  to  taking  it  without  any  saving  sen- 
timent of  duty  which,  shed  upon  its  sordid  details,  might  en- 
lighten all. 

Whatever  may  be  said  for  the  character  of  the  paid  hang- 
man in  his  private  capacity,  it  cannot  be  said  that  he  is,  as  a 
rule,  drawn  from  a  class  distinguished  for  its  refinement  or 
high  moral  sensibility.  What  is  more  likely  than  that  he  will  be 
brutalised  by  his  trade,  that  he  will  set  a  lighter  and  lighter 
value  on  human  life,  and  transmit  to  his  descendants  those 
blunted  capacities  for  feeling,  which  in  later  generations  might 
easily  develop  into  an  inhuman  cruelty!  We  can  ill  afford,  it 
would  seem,  to  perpetuate,  as  of  set  purpose,  a  degraded  strain 
in  a  race  already  heavily  handicapped  by  countless  accidents ! 


144  SELECTED  ARTICLES 

of  his  life,  engaged  in  profitable  occupation.  Verdicts  of  murder 
might  be  classified  under  two  heads,  as  first  and  second  degrees 
of  guilt.  For  the  former  the  sentence  would  be  an  unconditional 
detention  for  life ;  for  the  latter,  detention  from  twenty  to  thirty 
years,  the  present  system  of  marks  being  abolished,  and  ticket-of- 
leave  done  away  with.  A  special  prison  would  be  required,  built 
upon  the  lines  of  the  most  improved  American  -system,  and  into 
this  would  be  received  all  those,  male  and  female,  who  had  been 
convicted  of  wilful  murder.  Jn  case  of  protracted  misconduct,  the 
prisoner  would  be  removed  for  a  period  of  three  years  to  an  ordi- 
nary convict  prison,  there  to  undergo  the  usual  rigorous  discipline 
now  in  force.  Or,  during  the  first  three  years  of  the  sentence,  all 
convicts  might  be  sent  primarily  to  penal  servitude,  and  then  the 
removal  to  a  special  establishment  would  follow,  always  provid- 
ing that  the  conduct  has  been  good  during  the  three  years  of  pro- 
bation. This  proviso  would  ensure  satisfactory  discipline  in  the 
special  prison,  without  being  unduly  harsh,  bearing  in  mind  the 
indefinite  duration  of  the  sentence.  A  spirit  of  eclecticism  could 
do  much  in  the  choice  of  prison  system,  and  a  committee  of  visit- 
ors to  the  American  goals  would  be  a  step  in  the  right  direction, 
by  which  the  actual  selection  might  be  made. 

Westminster  Review.     155:144-9.     February,  1901. 

Capital   Punishment :     Ineffectual  and   Mischievous. 

T.  M.  Hopkins. 

Reciprocity  in  murder  is  certainly,  if  calmly  considered,  an 
odd  policy;  it  does  violence  to  the  old  and  true  maxim  that 
two  wrongs  do  not  make  one  right. 

Westminster  Review.     168: 178-86.     August,   1907. 

Emotion  as  a  Law-Maker:    a  Sociological  Suggestion. 

G.  M.   Hort. 

Revenge  of  a  kind  has  left  its  stamp  on  the  penalty  we 
impose  on  murder; — not  so  much  the  revenge  of  private  feud, 


CAPITAL    PUNISHMENT  145 

as  a  sort  of  a  social  blood-thirstiness ;  an  animus  felt  by  the 
whole  community  against  the  individual  who  had  violated  its 
peace.  None  will  deny  that  this  emotion  in  the  beginning  was 
a  natural  and  lawful  one;  that  it  even,  in  the  breasts  of  the 
men  who  felt  it,  indicated  a  moral  advance.  But  it  is  to  be 
regretted  that  this  natural  feeling  was  allowed  too  hastily  to 
cool  and  crystallise  into  a  dogma,  and  that  our  death  penalty 
should  now  by  consequence,  despite  great  outward  dignity  and 
moral  symbolism,  retain  the  impress  of  a  more  savage  age  than 
ours. 

Strangely  enough,  though  much  mild  sentiment  has  been 
expended  from  time  to  time  in  the  cause  o'f  the  criminal,  the 
cause  of  him  whom  the  criminal  has  rendered  necessary  has 
scarcely   found   an   advocate! 

Yet  the  hangman's  case  is,  to  the  clear-sighted,  actually  the 
more  pitiable  of  the  two.  He  must  be  a  very  high-minded  man, 
indeed,  if  he  does  not  morally  suffer  by  the  lack  of  moral 
support  and  the  sense  of  degradation  under  which  he  labours. 
Nor  are  these  things  of  the  senses  only.  There  is  much  in 
his  office  which  is  degrading  in  itself. 

It  is  indeed  surprising  that  so  far-seeing  and  prudent  a  folk 
as  the  English  usually  are,  should  have  tolerated  so  long  among 
them  the  rearing  of  a  series  of  individuals,  habituated  to  tak- 
ing human  life  in  cold  blood,  to  taking  it  from  unresisting 
persons,  and,  above  all,  to  taking  it  without  any  saving  sen- 
timent of  duty  which,  shed  upon  its  sordid  details,  might  en- 
lighten all. 

Whatever  may  be  said  for  the  character  of  the  paid  hang- 
man in  his  private  capacity,  it  cannot  be  said  that  he  is,  as  a 
rule,  drawn  from  a  class  distinguished  for  its  refinement  or 
high  moral  sensibility.  What  is  more  likely  than  that  he  will  be 
brutalised  by  his  trade,  that  he  will  set  a  lighter  and  lighter 
value  on  human  life,  and  transmit  to  his  descendants  those 
blunted  capacities  for  feeling,  which  in  later  generations  might 
easily  develop  into  an  inhuman  cruelty!  We  can  ill  afford,  it 
would  seem,  to  perpetuate,  as  of  set  purpose,  a  degraded  strain 
in  a  race  already  heavily  handicapped  by  countless  accidents ! 


146  SELECTED  ARTICLES 

If  a  professional  executioner  is  to  be  retained  at  all,  he 
should  be  elected  from  a  class  which  would  prove  itself  most 
fit,  by  being  the  most  soberly  reluctant.  He  should  be  chosen 
from  individuals,  who  deeply  endowed  with  feeling,  would  yet 
be  ready  to  set  feeling  aside,  and  sink  it  in  a  deeper  sense 
of  awful  obligation.  He  should  be  a  man  whose  thoughts  could 
never  degrade  himself,  and  whose  speech  could  never  degrade 
others.  In  a  word,  he  should  be  a  man  of  so  high  an  order 
of  mind,  as  to  be  able  to  elevate  his  task,  instead  of  sinking 
to  its  level. 

If  the  law  indeed,  as  the  thirty-seventh  Article  maintains, 
has  power  "to  punish  Christian  men  with  death,"  and  if  it 
be  found  necessary  as  of  old  to  the  "King's  Peace"  that  it 
should  always  continue  to  exert  this  power,  it  would  be  well 
to  find  some  method  whereby  that  punishment  should  not  in- 
volve the  demoralisation  of  a  number  of  other  "Christian  men !" 
Popular  agitation  resulted  in  the  end  of  public  executions  on 
those  very  grounds — that  of  demoralisation ;  and  on  the  same 
grounds  it  might  avail  to  abolish  the  hangman  too. 


Westminster    Review.    169:333-41.    March,    1908. 
Homicidal  Crime  and  the  Death  Penalty  Abroad.     Carl  Heath. 

Writing  in  the  December  number  of  the  Nineteenth  Century 
and  After,  Sir  Arthur  Wills,  late  Justice  of  the  High  Court, 
makes  the  somewhat  notable  confession  of  opinion  that — "The 
greater  the  uncertainty  of  punishment,  the  less  its  deterrent 
effect.  Could  certainty  be  secured  a  small  penalty  would  have 
much  more  effect  than  a  greater  punishment  combined  with 
uncertainty."  I  say  notable,  as  coming  from  a  judge,  and  one 
who,  strangely  enough,  is  not  prepared  to  support  a  demand 
for  the  abolition  of  that  greatest  and  most  uncertain  of  pen- 
alties— the  penalty  of  death. 

The  latest  judicial  statistics  obtainable  for  England  and 
Wales,   viz.,   those   published   in   March,    1907,   and   which   take 


CAPITAL    PUNISHMENT  147 

us  up  to  the  corresponding  month  in   1905,  give  the  following 

for  the  previous  twelve  months : — 

Number  of  homicides  known  to  the  police 287 

(Murders  137,  manslaughters  150.) 

Number  of  convictions  and  death  sentences  for  murder 32 

Number  of  convictions  for  manslaughter 72 

Number  of  executions  for  murder  17 

To  say  the  least  these  figures  are  arresting,  for  they  show 
that  under  our  present  system  the  chances  of  a  murderer  es- 
caping conviction  are  three  to  one,  and  the  chances  of  escap- 
ing the  only  admitted  penalty  according  to  the  law  are  exactly 
seven  to  one. 

And  this  is  the  more  curious  and  significant  because  the 
most  common  of  all  pleas  for  the  retention  of  capital  punish- 
ment is  the  plea  of  its  deterrent  character.  Very  many  other- 
wise humane  people,  people  who,  by  the  way,  would  never  be 
able  to  bring  themselves  to  the  point  of  personally  assisting 
at  the  execution  of  a  fellow  creature,  and  who  are  otherwise 
very  willing  to  help  in  humanising  the  criminal  law,  do,  not- 
withstanding, seriously  believe  that  this  penalty  is  a  "regrettable 
necessity,"  and  that  were  it  to  be  abolished,  a  serious  out- 
break of  crimes  of  murder  would  immediately  take  place.  They 
believe,  as  so  many  have  believed,  that  a  terrible  punishment 
must  deter.  This  idea  of  the  inherently  deterrent  nature  of  vio- 
lent punishment  is  always  coming  to  the  fore.  Thus,  to  mention  a 
classic  example,  the  Whig  government  of  Earl  Grey  in  1832 
could  conceive  of  no  better  way  of  meeting  a  rather  large 
number  of  murders  than  the  re-introduction  of  the  ghastly 
business  of  gibbetting.  Fortunately  for  the  credit  of  English 
humanity,  the  violent  rioting  amongst  the  brutal  mobs  that 
assembled  for  the  show^s  of  Leicester  and  Jarrow  led  to  the 
abandoment  of  the  idea. 

The  truth  is  that  one  single  fact  vitiates  the  whole  argu- 
ment for  terrible  punishment,  and  it  is  this — the  more  terrible 
a  punishment  the  more  impossible  it  becomes  in  modern  days 
of  civilisation,  science,  and  humane  ideas,  to  carry  it  out  in- 
flexibly,   without    hesitation,    and    without    innumerable    excep- 


148  SELECTED  ARTICLES 

tions.  Every  step,  therefore,  in  this  direction,  makes  the  cer- 
tainty of  the  punishment  grow  less  and  less.  And  as  its  cer- 
tainty vanishes,  its  deterrent  character  vanishes  also.  Now  this 
is  precisely  the  case  with  the  death  penalty.  Hanging  for  mur- 
der might  be  a^  plausible  method  of  punishment  from  the  de- 
terrent point  of  view,  if  we  always  or  almost  always  hanged  the 
murderer.  But  we  do  not  and  cannot.  We  hang  one  in  eight, 
and  that  one  very  often  with  protests  from  large  numbers  of 
people.  The  penalty  has  ceased  to  justify  its  existence  then 
from  this  point  of  view,  ceasing  to  be  an  effective  deterrent. 

But  even  if  we  still  hanged,  as  in  the  good  old  days,  why, 
it  may  be  asked,  should  we  suppose  that  it  would  deter  the 
murderer.  In  the  debate  of  1877  the  late  Sir  William  Har- 
court  very  truly  said : — "If  the  punishment  of  death  did  not 
prevent  men  from  stealing  horses,  why  was  it  more  likely  to 
prevent  them  front  committing,  murder?  Murder  was  gener- 
ally committed  under  the  influence  of  violent  passion ;  and  if  it 
was  found  that  the  punishment  of  death  did  not  deter  in  the 
case  of  crimes  which  were  committed  in  cold  blood,  was  it 
possible,  was  it  reasonable,  to  suppose  that  it  would  act  as  a 
greater  deterrent  in  the  case  of  murder?" 

However,  the  Englishman  is  proverbially  not  a  student  of 
history,  else  he  might  be  struck  in  this  connection  by  the  fatu- 
ous opposition  offered  in  the  past  to  the  abolition  of  capital 
punishment  for  other  crimes,  such  as  forgery,  stealing,  and  sac- 
rilege— all  capital  crimes  eighty  years  ago.  Said  Lord  Ellen- 
borough  in  the  House  of  Lords  in  1833,  speaking  against  the 
proposal  to  abolish  hanging  for  stealing: — "Your  lordships  will 
pause  before  you  assent  to  a  measure  pregnant  with  danger  to 
the  security  of  property.  The  learned  judges  are  unanimously 
agreed  that  the  expediency  of  justice  and  the  public  security 
require  there  should  not  be  a  remission  of  capital  punishment 
in  this  part  of  the  criminal  law.  My  Lords,  if  we  suffer  this 
bill  to  pass  we  shall  not  know  where  we  stand ;  we  shall  not 
know  whether  we  are  on  our  heads  or  on  our  feet." 

The  pro-hanging  portion  of  the  community  might,  perhaps, 
with  some  force,  say:     "It  is  contended  that  we  are  wrong  in 


CAPITAL    PUNISHMENT  149 

supposing  that  the  abolition  of  capital  punishment  for  murder 
would  result  in  an  increase  of  homicidal  crime.  But  one  opinion 
is  as  valuable  as  another,  and  we  cannot  afford  to  risk  the 
experiment."  I  say  with  some  truth  only,  for  this  position  would 
be  tenable  if  the  experiment  had  never  been  made.  I  propose 
to  show  how,  in  other  civilised  countries,  more  particularly 
those  allied  to  us  by  blood,  by  religious,  social,  and  poHtical 
ideas,  it  has  been  made,  and  with  marked  success. 

The  nearest  country  of  which  this  is  true  is  Holland.  The 
Dutch  are  not  sentimentalists,  and  their  laws  and  customs  are 
based  on  similar  sanctions  to  our  own.  And  their  political 
outlook,  their  religious  ideas,  and  their  social  organisation,  make 
their  experience  a  valuable  one. 

Capital  punishment  was  abolished  in  the  Netherlands  in 
1870.  The  Consul-General  for  Holland,  replying  last  July  to  a 
question  addressed  to  him  by  the  Council  of  the  Society  for 
the  Abolition  of  Capital  Punishment,  gave  the  following  fig- 
ures for  ten  years  : — 

Number  of  Persons  Convicted  of  Murder 

1894    12      1899  8 

1895     9  1900 5 

1896    9  1901 5 

1897 : 8  1902    3 

1898    6  1903    5 

These  figures  do  not  bear  out  the  theory  of  an  increase 
in  murder  crimes  following  abolition.  On  the  contrary,  tak- 
ing into  consideration  the  increase  in  population,  they  emphat- 
ically point  the  other  way.  They  also  bear  witness  to  the  truth 
of  a  remark  made  by  a  recent  writer  in  the  Nation  to  the  effect 
that — "at  bottom,  the  criminal  problem  is  not  so  much  a  pe- 
nal as  a  social  problem."  Fundamentally,  it  is  not  punishment 
that  lessens  crime  of  any  kind,  but  improved  conditions. 

The  average  of  murder  cases,  according  to  the  Dutch  Mini- 
ster of  Justice,  from  1849  to  1869  was  one  in  325,000  of  the  popu- 
lation. From  1869  to  1888,  it  was  one  in  346,000.  In  1878  there 
were  14  cases;  in  1888,  12  cases;  in  1898,  6  cases. 


150  SELECTED  ARTICLES 

The  same  kind  of  evidence  comes  from  Belgium.  In  Bel- 
gium, capital  punishment  has  not  been  abolished  de  jure,  but 
no  execution  has  been  carried  out  since  1863.  The  Minister  of 
Justice  stated  in  1890,  that  during  the  decade  1846-1855,  when 
executions  were  carried  out,  there  were  143  capital  sentences. 
In  the  decade  1876-1885,  when  executions  were  not  carried  out, 
there  were  87  capital  sentences.  In  other  words,  with  no  ex- 
ecutions the  number  of  murder  cases  had  decreased  by  nearly 
40  per  cent. 

As  regards  the  Northern  states  the  following  letters  of  last 
October  and  November  are  of  interest: — 

From  the  Consul-General  for  Norway: — "I  beg  to  inform 
you  that  by  the  General  Civil  Criminal  Law  of  the  22nd  May, 
IQ02,  capital  punishment  was  abolished  in  Norway.  No  death  pen- 
alty has,  however,  taken  place  in  Norway  since  the  seventies. 
The  last  execution  was  performed  in  Bergen  in  1875." 

From  the  Consul-General  for  Sweden : — "I  beg  to  say  that 
capital  punishment  is  not  abolished  in  Sweden,  but  in  later  years 
executions  have  only  been  carried  out  in  exceptionally  grave 
instances.  As  far  as  is  known  this  growing  clemency  on  be- 
half of  the  state  cannot  be  said  to  have  provoked  any  increas- 
ing criminality  in  the  country." 

From  the  Consul-General  for  Denmark : — "I  beg  to  say  that 
the  death  penalty  is  still  maintained  in  Denmark.  No  capital 
punishments  have,  however,  taken  place  for  the  last  ten  years, 
as  the  King  always  uses  his  right  to  reprieve  the  condemned 
persons." 

I  cannot  pretend  to  offer  statistical  results  of  the  humanising 
tendency  in  the  Scandinavian  states,  but  it  is  at  least  obvious 
that  it  has  not  led  to  an  increase  of  murder  crimes ;  otherwise 
we  may  be  sure  that  the  capital  sentence  which  still  is  passed 
in  Sweden  and  Denmark,  would  not  have  been  systematically 
abjured  during  the  last  decade,  by  the  authofities  concerned. 

When  we  turn  to  Switzerland  we  obtain  even  more  valua- 
ble   evidence.     In    1874   the   Federal    Parliament   abolished   the- 
death  penalty  throughout  the  Republic.     Many  people,  however, 
were  not  prepared  for  such  a  measure,  and  an  outcry  occurred 


CAPITAL    PUNISHMENT  151 

in  some  of  the  Cantons.  As  a  consequence,  permission  was 
given  in  1879  to  the  Cantons  to  individually  restore  the  death 
penalty,  and  eight  Cantons  re-established  it.  The  Society  for 
the  Abolition  of  Capital  Punishment  applied  last  June  to  the 
British  Legation  at  Berne  for  information  as  to  the  number 
of  executions  in  these  Cantons  since  the  re-introduction  of  capi- 
tal punishment.  The  following  reply  from  the  Legation,  dated 
July  4th,  1907,  is  instructive:  "I  beg  leave  to  inform  you  that 
from  enquiry  made  at  the  Federal  Department  of  Justice  and 
Police,  there  have  been  no  executions  in  Switzerland  since  1879," 
This  result  cannot  be  due  to  Swiss  sentiment  for  the  death 
penalty  was  expressly  re-introduced  on  the  ground  that  it  was 
a  necessity — murders  would  increase,  etc.  The  result,  in  fact, 
is  due  to  experience — murders  have  not  increased  with  a  more 
humane  execution  of  the  law.  As  has  been  remarked,  not  even 
a  defender  of  hanging  feels  less  safe  in  Geneva  than  in  Glasgow 
or   Manchester. 

In  Portugal  capital  punishment  was  abolished  in  1867.  Homi- 
cides are  officially  stated  to  have  materially  decreased  since 
abolition,  previous  to  which  they  were  never  less  than  140  per 
annum,  and  they  had  been  as  high  as  220.  In  1880  they  were 
just  half  of  the  latter  number — viz.,  no. 

The  case  of  Italy  is  somewhat  difficult  to  deal  with.  Mur- 
ders, or  rather  "assassinations,"  are,  and  always  have  been, 
extremely  numerous,  and  even  so  well  informed  a  paper  as 
The  Lancet,  attributes  this  fact  to  the  abolition  of  the  death 
penalty  by  the  New  Code  of  1889.  But  that  the  death  penalty 
has  little  or  nothing  to  do  with  these  assassinations,  and  that 
an  explanation  of  them  must  be  sought  in  factors,  racial,  so- 
cial, and  climatic,  is  shown  by  the  fact  that  although  capital 
punishment  has  been  abolished  in  Tuscany  for  a  century,  and 
although  murders  are  frequent  there,  the  number  in  propor- 
tion to  the  population  is  about  one-tenth  of  those  occurring  in 
Sicily  (vide  Howard  Association  Inquiry,  1890). 

The  Lancet,  indeed,  gives  us  the  real  explanation  of  these 
murders.  They  are  largely  due,  we  are  told,  to  "the  use  of 
the   stiletto,   or  knife,   carried    (illegally)    by  every   Italian,   and 


152  SELECTED  ARTICLES 

the  consequent  infliction  of  blows  not  intended  to  be  lethal, 
but  often  having  that  issue.  Youths  of  either  sex,  for  ex- 
ample, in  a  fit  of  jealousy  or  vicious  excitement,  will  whip  out 
a  knife,  and  before  they  are  aware  of  what  they  have  done, 
will  have  killed  the  object  of  their  momentary  resentment."  It 
seems  obvious  that  this  kind  of  crime  will  never  be  stamped 
out  by  any  kind  of  penalty,  but  needs  a  remedy  of  a  more  rad- 
ical kind,  touching  the  cause  and  not  the  effect. 

When  we  turn  to  France,  where  the  executioner's  salary 
has  been  suspended,  and  where  the  President  refuses  to  sign  death 
warrants,  we  are  met  with  the  cry  that  crime  has  enormously 
increased  of  late  years,  and  there  is  probably  some  truth  in 
this  assertion.  The  real  weakness  in  France  is  not  the  lack 
of  capital  punishment,  as  many  of  the  papers  tell  us,  and  as 
large  numbers  of  French  jurors  appear  to  think,  but  a  lack 
of  the  sure  administration  of  the  law.  As  that  venerable  re- 
former, Frederic  Passy,  states :  "It  is  the  certitude  of  non- 
capital punishment,  not  the  terrors  of  a  death  penalty,  which 
there  are  so  many  chances  of  escaping,  that  influences  the 
mind  of  a  criminal."  It  is  not  violence  but  uncertainty  that 
breeds  contempt  in  the  minds  of  those  who  might  possibly  be 
deterred  by  fear  of  the  law.  The  French  apache  or  other  mur- 
derous ruffian  has  no  ground  at  present  for  beheving  that  the 
law,  whatever  it  be,  will  be  carried  out.  And  as  regards  capi- 
tal punishment,  it  cannot  be  too  often  emphasized  that  it  can 
only  be  an  effective  deterrent  when  rigorously  enforced,  and  that 
that  is  just  what  is  impossible  under  modern  civilised  condi- 
tions. Under  present  conditions,  even  when  the  penalty  is  en- 
forced, say  in  the  case  of  a  cold-blooded  murder,  the  likelihood 
that  it  will  not  be,  which  in  England  is  as  seven  chances  to 
one,  and  in  France  has  been  greater,  neutralises  all  deterrent 
influence.  The  French  experiment  in  abolition,  it  must  be  re- 
membered, is  but  a  short  one  of  some  two  years.  The  follow- 
ing, which  I  quote  from  the  International  Journal  of  Ethics, 
of  April,  1907,  illustrates  my  point : — 

"A  double  execution  took  place  last  August  twelvemonth  at 
Dunkirk,  of  two  Belgians  named  Van  der  Bogaert  and  Swar- 


CAPITAL    PUNISHMENT  153 

tewagher.  These  two  ruffians  had  committed  robbery  and  mur- 
der; deliberate  murder,  that  is,  for  the  purpose  of  a  burglary. 
There  was  no  passion  or  hatred  of  an  individual  in  their  crime. 
If  the  fear  of  the  death-  penalty  had  any  effect,  why  did  they 
not  transfer  the  execution  of  their  plot  some  few  kilometers 
to  the  east,  over  the  Belgian  border,  where  their  necks  would 
have  been  safe." 

Well  might  the  Petit  Bleu  call  this  a  "saisissante  preuve 
de  I'inefficacite  de  la  peine  de  mort." 

What  will  be  the  immediate  solution  of  the  question  of  the 
death  penalty  in  France  it  is  difficult  to  say,  but  while  one  lead- 
ing review  declares  that — "It  is  no  use  legislating  on  this  mat- 
ter in  advance  of  public  opinion,  and  while  French  juries  all 
over  the  country  demand  a  return  to  the  guillotine,  there  is,  on 
the  other  hand,  no  reason  to  suppose  that  what  has  been  the 
case  in  Switzerland,  Belgium,  and  Portugal,  will  not  be  the 
case  in  France,  and  that  when  the  death  penalty  finally  dis- 
appears, the  public  will  accommodate  itself  to  the  moral  level  of 
the  law." 

America  oflfers  the  best  possible  field  for  the  formation  of 
English  opinion  on  this  question,  for  not  only  are  many  of  the 
states  to  a  very  large  extent  English  in  character,  religion,  so- 
cial customs,  law,  and  language,  but  the  forty-five  states,  with 
their  forty-five  criminal  codes,  offer  a  wide  and  useful  field 
for  comparison.  Capital  punishment  has,  as  yet,  been  abol- 
ished in  five  states  only,  viz.,  Maine,  Wisconsin,  Kansas,  Michi- 
gan, and  Rhode  Island.  On  the  other  hand  two  states,  Virginia 
and  Missouri,  have  the  unenviable  notoriety  of  eight  capital 
crimes  each.  Between  these  there  is  every  possible  variety. 
Louisiana  has  seven  capital  crimes,  Delaware  six,  five  others 
have  4,  three  have  3,  nine  have  2,  and  nineteen  have  one 
capital  crime  each.  Amongst  the  crimes  which  are  capital  in 
many  states  are  murder,  treason,  rape,  kidnapping,  and  train- 
robbing.  Thus  rape  is  capital  in  sixteen  states,  treason  in  ten, 
and  kidnapping  in  three. 

Now,  it  is  quite  arguable  that  the  peculiar  conditions  pre- 
vailing in  some  of  the   Southern   states  make  the  maintenance 


154  SELECTED  ARTICLES 

of  the  death  penalty  necessary.  As  an  Englishman  I  am  not 
presumptuous  enough  to  deny  this  offhand.  I  would  remark, 
however,  that  these  are  not  the  states  from  which  one  would 
draw  inferences  applicable  to  the  British  Isles.  The  Northern 
states,  including  those  which  have  done  with  the  hangman,  are 
much  nearer  to  England  in  point  of  conditions.  But  I  may  draw 
attention  to  the  remarkable  report  drawn,  up  by  Mr.  Thos. 
Speed  Mosby,  the  Pardon  Attorney  to  the  Governor  of  Missouri. 
Mr.  Mosby  addressed  the  Attorney-General  of  each  state  by 
circular  letter  requesting  certain  information  with  regard  to 
the  death  penalty.  He  tells  us  that  the  Attorney-Generals  of 
the  five  states  in  which  capital  punishment  has  been  abolished, 
all  report  that — "There  has  been  no  increase  in  capital  crime  , 
since  abolition."  I  should  here  state  that  the  dates  of  aboli- 
tion are  the  following:  Michigan  1847,  Rhode  Island  1852,  Wis- 
consin 1853,  Maine  1887,  Kansas  1907.  In  the  last-mentioned 
state  there  has  never  been  a  legal  execution,  but  the  death  pen- 
alty was  only  formally  abolished  last  year.  Maine  first  abol- 
ished the  death  penalty  in  1876.  In  1883,  it  was  re-enacted  for 
the  crime  of  murder  alone.  In  1885,  the  governor,  in  his  mes- 
sage, remarked  that  there  had  been  :  "An  unusual  number  of 
cold-blooded  murders  within  the  state  during  the  two  years 
past,"  and  that  "the  change  in  the  law  relating  to  murder  had 
not  afforded  the  protection  anticipated."  In  1887,  Maine  finally 
^  got  rid  of  its  hangman.  It  will  be  seen  that  there  has  now 
been  some  time  for  observation  of  results.  It^may,  perhaps,  be 
argued  that  these  are  all  Northern  and  Eastern  states,  but  Mr. 
!Mosby  draws  some  suggestive  comparisons.  Thus — "Illinois, 
with  her  large  negro  population,  suffers  no  more  from  rape  than 
does  Missouri,  yet  in  Missouri  it  is  capital,  in  Illinois  not." 
"Death  is  the  penalty  for  murder  in  all  Kentucky,  yet  in  some 
parts  of  that  state  murder  of  family  foes  is  a  matter  of  family 
pride."  "Murder  is  capital  in  Colorado,  but  murder  is  morei 
common  there  than  in  Kansas,  which  has  no  capital  punishment"! 
On  the  whole  it  may  be  said  that  the  tendency  in  America 
is  very  generally  towards  the  humanising  of  the  criminal  law. 
the    introduction   of    reformative   and   curative    methods    replac- 


CAPITAL    PUNISHMENT  I5S 

ing  the  old  punitive  ones,  and  that  with  the  advance  of  these 
methods  the  death  penalty  will  naturally  disappear,  either  by 
direct  abolition  or  by  the  introduction  of  gradation  of  murder 
crimes,  when  the  capital  penalty  will  die  out  by  gradual  disuse. 

Thus  Mr.  Mosby,  writing  some  months  later  with  regard  to 
Missouri,  says :  "This  state  has  recently  enacted  a  law  leaving 
it  optional  with  trial  juries  as  to  whether  the  death  penalty  shall 
be  imposed  for  murder  in  the  first  degree.  It  is  thought  that 
this  law  will  greatly  reduce  the  number  of  executions,  for  most 
juries  among  us  are  exceedingly  averse  to  the  infliction  of  the 
death  penalty.  The  new  law  gives  the  jury  the  option  of  im- 
posing a  life  sentence  in  the  place  of  capital  punishment,  and 
it  is  expected  that  life  imprisonment  will  be  the  result  of  murder 
convictions  hereafter  in  this  state."  The  same  holds  good  of 
at  least  sixteen  other  states,  including  Massachusetts  and  New 
York,  and  there  is  no  doubt  but  this  is  the  tendency  in  the  de- 
velopment of  the  criminal  law  throughout  the  United  States. 

Enough,  however,  has  been  said,  I  think,  to  prove  the  truth 
of  the  contention  that  the  experience  of  other  countries,  and 
more  particularly  of  Holland  and  the  Northern  Countries,  and 
of  certain  of  the  states  of  the  American  union,  goes  to  show 
that  the  time  has  now  come  when  the  death  penalty — a  pen- 
alty in  direct  opposition  to  all  the  tendencies  and  methods  of 
modern  penology, — not  only  should  be  abolished,  on  humani 
and  ethical  grounds,  but  that  with  perfect  practical  safety  might 
be  so.  That,  indeed,  so  far  from  any  disastrous  results  fol- 
lowing, an  increased  respect  for  human  life  shown  by  the  state 
in  its  legal  expression  would  lead  to  an  increased  respect  for 
human  life  in  its  component  parts,  the  men  and  women  of  whom 
the  state  is  composed. 

One  other  point  may  here  be  dealt  with,  though  it  does  not 
directly  form  a  part  of  my  thesis.  The  English  humanitarian 
societies,  including  the  Society  for  the  Abolition  of  Capital  Pun- 
ishment, have  adopted  the  policy  of  graduation  of  murder  crimes 
first,  abolition  of  the  death  penalty  second.  Even  those  who 
are  not  convinced  of  the  practical  possibility  of  abolishing  the 
hangman  at  present,  must  admit  that  it  is  a  monstrous  thing  that 


156  SELECTED  ARTICLES 

forty-one  years  after  the  strong  recommendation  of  the  last 
Royal  Commission  on  Capital  Punishment  of  1864-6,  we  should 
have  made  no  progress  whatever  in  the  matter  of  gradation — 
that  judge  and  jury  must  still  choose  between  guilty  and  death 
or  not  guilty  and  freedom  in  every  case  of  technical  murder 
from  the  most  cold-blooded  and  mercenary  crimes  to  crimes  of 
passion  and  misery.  It  is  a  ghastly  mockery  that  capital  trials 
should  still  take  place  in  cases  of  infanticide,  that  the  judge 
should  still  be  compelled  to  pass  sentence  of  death  upon  some 
unfortunate  girl,  who,  may  be,  has  been  in  several  cases  lately, 
about  to  give  birth  to  another  child.  Such  a  sentence  must 
desolate  every  humane  and  decent-minded  judge,  and  is  a  vile 
and  standing  disgrace  to  our  criminal  code.  Compare,  then, 
the  code  of  this  country  with  that  of  our  ally,  the  non-Christian, 
but  advancing  Japan.  Count  Mutsu,  of  the  Japanese  Embassy, 
replying  to  the  Council  of  the  Society  for  the  Abolition  of  Capi- 
tal Punishment,  states:  "Under  the  revised  criminal  code  of 
Japan  murder  is  punishable  by  penalty  of  death,  or  by  penal 
servitude  for  life,  or  for  not  less  than  three  years,  according  to 
the  circumstances  of  the  case." 

If,  then,  my  countrymen  still  cling  to  their  hangman,  "one 
of  the  bulwarks  of  the  British  constitution,"  as  it  has  been  said, 
is  it  not  at  least  time  that  his  post  should  be  reduced  in  im- 
portance to  that  which  it  occupies  in  the  land  of  the  Rising  Sun? 
Surely  we  can,  at  least,  afford  to  be  as  just,  as  intelligent,  and  as 
humane  as  the  Asiatic  Japanese. 


Westminster  Review.  170:  91-8.  July,  1908. 

Shall  We  Abolish  the  Death  Penalty?    Advocate  C.  J.  Ingram. 

A  Reply  to  Mr.  Carl  Heath. 

In  a  recent  article  in  the  Westminster  Review  the  case  for 
the  abolition  of  capital  punishment  was  advocated  with  such 
vigour  and  such  a  wealth  of  statistics  that  its  conclusion  at  first 
sight  appeared  irrefragable.     But  if  it  is  admissible  to  attempt 


\ 


CAPITAL    PUNISHMENT  157 

to  solve  a  problem  involving  such  abstract  questions  as  those 
raised  by  penalism  by  recourse  to  concrete  figures,  it  is  well  to 
look  also  at  the  other  side  of  the  medal. 

An  enquiry  into  the  efficacy  of  capital  punishment  not  only 
involves  the  question  of  the  deterrence  of  homicide,  but  neces- 
sarily includes  the  consideration  of  other  phases  of  crime. 

Now  at  the  outset  we  have  this  objection  to  the  position 
taken  up  by  Mr.  Heath. 

In  limiting  his  article  almost  entirely  to  the  deterrent  effects 
of  capital  punishment,  he  has  omitted  not  only  the  preventive 
results,  but  also  has  made  no  investigation  into  the  real  reasons 
for  which  we  punish  with  death. 

Reverting  to  the  history  of  penalism,  the  subject  falls  natur- 
ally into  three  periods. 

The  original  theory  of  punishment  was  vindictiyf;  pnrf  ^"^  — 
simple:  the  "  ley  fH^'''~>"^''^/*  thf  ^y^  ^"^  "*  "]'"  ""'^  ^^'^  fr>r>fVi  fr>r. 

?l^^"<^2,_j2^1d    un^l^gp^^^^^    g^»^^y    ^g    <^hp    mpagnrP  .of   jiigfjrfi    IVQjp 

the  end  of  th^  piphtppnth  rentury.  And  as  between  his  victim 
and  the  wrong-doer  a  great  deal  may  be  said  for  it.  For  if  the 
instinct  of  justice  is  innate  in  mankind,  is  it^nQtJlijIlSL  that  the 
juiltv  party  in  his  heart  of  hearts  will  admit  the  justice  of  the 
penaltYJ^  The  humanitarian  .may-JiQssibly  object  to_.the  .applica— 
tion  of  the  supreme  penalty  to  others.  Iiut  conceiving_tlie.  pnsMbiJL- 
ity  of  his  beingiDimd  in  such  grave  circumstances  hiiuselirwontd 
he  object  to  the  justice  of  the  punishment  that  demanded  his^:, 
head  ? 

If  the  aim  of  judgment  is  to  fit  the  crime,  then  the  death 
penalty  is  one  of  the  few  cases  in  which  such  retribution  is 
possible.  Such  a  phase  of  justice  may  be  elementary,  but  it  does 
not  necessarily  follow  that  it  is  incorrect. 

During  the  second  period,  following  on  the  close  o£  the 
eighteenth  and  during  the  early_  portijoa^oL.the,_nineteenth.,.ce»-  - 
turies.  the  aim  of  punishment  was  almost  entirely  deterrent. 
Public  opinion,  shrinking  from  purely  retributive  theories,  had 
not  so  far  advanced  as  to  imbibe  reformatory  ideas.  The  law  - 
set  itself  to  intimidate  others,  not  to  correct  the  malefactor  him- 
self.   Under  this   theory   it   was   held    necessary   to   retain   the 


\ 


N 


158  SELECTED  ARTICLES 

capital  penalty  for  homicide,  though  its  use  was  abrogated  in  the 
case  of  less  serious  crime.  (Now  it  is  to  this  conception  of  capi- 
tal punishment,  namely  in  its  action  as  a  deterrent,  that  excep- 
tion is  taken  almost  entirely  by  the  humanitarian  school,  and 
against  its  validity  as  such  their  attack  is  confined. )  Omitting 
then  for  the  moment  its  preventive  and  other  indirect  effects,  it 
will  be  necessary  to  follow  Mr.  Heath's  investigation  of  capital 
punishment  as  a  deterrent  pure  and  simple. 

Does  the  death  penalty  deter?  At  the  outset  one  must  com- 
bat, at  any  rate  as  far  as  England  is  concerned,  the  assertion 
that  the  very  small  percentage  of  executions  actually  carried  out 
diminishes  the  effect  of  the  capital  sentence  on  the  mijid  of  the 
public.  As  matters  stand,  the  man  in  the  street  does  not  read 
statistics,  and  though  he  is  aware  that  homicides  attended  by 
mitigating  circumstances  do  not  meet  with  the  supreme  penalty, 
yet  in  his  mind  the  crime  of  murder  and  the  hangman's  rope  are 
indissolubly  connected. 

Whilst  dealing  with  direct  deterrence  the  comment  is  fre- 
quently made,  how  can  the  existence  of  capital  punishnient  pre- 
vent the  commission  of  homicide  undertaken  under  extreme 
circumstances  of  passion,  emotion,  or  revenge?  In  answering 
this  question  we  must  notice  the  underlying  fallacy.  Crimes 
committed  under  circumstances  of  great  excitement,  sudden 
passion,  or  provocation  do  not  generally  call  for  the  extreme 
penalty,  for  Lcchnically  they  do  not  amount  to  murder. 

Practically  only  three  classes  of  homicide  are  attended  with 
the  death  penalty.  First,  where  the  deliberate  intention  to  kill- 
is  manifest  or  may  be  presumed  from  the  circumstances  of  the 
case;  for  instance,  where  poison  or  some  other  similar  deadly 
means  are  employed;  secondly,  where  the  killing  is  preceded 
by  or  accompanied  with  some  other  very  serious  crime,  such 
as  rape,  burglary,  or  robbery.  The  third  class  comprises  those, 
cases  which  declare  a  reckless  disregard  of  human  life. 

Instances  of  this  are  baby-farming,  where  the  culprit  com- 
mits murder  for  a  paltry  gain,  and  sexual  cases,  where  a  tired 
husband  or  lover  removes  his  wife  or  mistress  in  a  cold-blooded 
and  heartless  fashion. 


CAPITAL    PUNISHMENT  159 

Bomb-throwing  and  train-wrecking  afford  other  illustrations. 

So  if  a  man  finds  another  in  the  act  of  adultery  with  his 
wife  and  comes  upon  him  shortly  after  and  kills  him,  it  is 
extremely  improbable  that  any  jury  will  convict  him  of  murder, 
but  supposing  a  considerable  period  of  time  to  ensue  and  de- 
liberate revenge  be  substituted  for  passion,  it  will  be  a  very 
different  state  of  affairs. 

Therefore,  we  mav  sav  that  only  three  classes_of  homicide 

re  punished  by  the  death  penalty,  namely:   (i)  where  delibera- 

tibn   is    evincedj    (2)    homicide    accompanied    by    other    serious 

rrirnp;    (-^^    Y^hpr^_-±k^.rft.-l&    a    rprlrlp^t;    di';rpp-^rr1    of    luimail    life. 

And  in  such  cases  the  fact  that  the  death  penalty  will  follow  is 
certain  and  of  this  certainty  the  public  is  aware.  It  is  on  these 
types  of  crime,  therefore,  that  we  must  focus  our  investigation 
Til  ]ans^^7mTig~4i»«»'ttiaestiGn  as  to  the  cfFect  of  the  death  penalty 
as  a  deterrent. 

In  dealing  with  such  a  psychological  problem,  the  value  of 
statistics,  as  has  been  premised  before,  is  doubtful;  but  if 
statistics  are  taken  as  to  the  effect  of  severity  of  punishment 
on  homicide,  and  of  all  forms  of  punishment  capital  punish- 
ment is  the  most  severe,  what  do  we  find? 

In  France  crime  divides  itself  into  two  epochs.  From  1828 
to  1884  murders  rose  from  197  to  234  per  annum;  infanticides 
from  102  to  194;  criminal  assaults  on  children  from  136  to 
791 ;  on  a  population  showing  an  increase  from  31  millions  to 
38  millions.  Surely  such  a  state  of  affairs  cannot  only  be 
attributed  to  a  lack  of  sound  administration,  especially  when  it 
happens  to  be  coeval  with  that  second  period  when  the  theory 
of  short  and  reformatory  punishment,  the  badge  of  the  humani- 
tarian school,  was  most  in  vogue?  The  second  epoch  in  France 
dates  from  1886,  where  a  small  diminution  of  the  most  serious 
crime  is  apparent,  coinciding  with  a  marked  increase  in  the 
severity  of   punishment. 

In  Italy  the  declension  of  severity  in  sentences  is  in  direct 
ration  with  the  increase  of  crime  between  the  periods  from 
1863-1880. . 


I 


i6o  SELECTED  ARTICLES 

The  following  table  of  statistics  shows  the  remarkable  rise  in 
the  figures,  during  this  period  of  leniency. 

Crime  in  Italy  from  1863-80 

1863  1869  1870  1880 

Parricides 12  22  34  39 

Conjugal    crimes,    murder   by    hus- 
band of  wife  or  vice  versa \  1^  38  92 

Infanticide 44  52  53  82 

Other    murders     .285  419  450  705 

In  1S00-1870.  increase  of  crimes  punishable  by  death.  22  per  cent. 
Tn  1860-1870,  increase  of  crimes  i)unishal)K'  I)y  imprisonment 
/or  life,   64  per  cent. 

Im-ohi  1881  onwafd's  a  tendency  of  the  more  serious  crime  to 
decrease  is  noticeable,  but  in  1890  the  death  penalty  is  abolished. 
^urder  statistics  show  an  annual  average  of  4,000  cases  and 
an  increase  of  crime  from  254,591  cases  in  1890  to  305,258  in 
1899,  which  works  out  at  an  increase  of  nearly  200  criminals  per 
joo,ooo  of  population. 

Taking  the  third  great  continental  power,  Austria,  we  find 
an  annual  increase  of  crime  from  18,154  i»  1865  to  27,304  in  1875, 
and  a^jnuch  as  31,000  in  1898. 

So  everywhere  in  the  larger  continental  powers,  statistics 
show  a  remarkable  aggravation  of  crime.  But  in  Great  Britain 
we  find  a  remarkable  contrast.  With  reference  to  our  criminal 
statistics  the  remark  of  the  celebrated  Italian  theorist  Garofalo, 
in  his  work  on  criminology  (to  whom  the  writer  is  indebted 
for  the  above  figures)  are  illuminating.  "It  is  only  in  England," 
he  says,  "that  crime  shows  a  general  tendency  to  decrease,  espe- 
cially in  its  gravest  forms,  looked  at  over  a  period  of  several 
years.  Murder  has  become  exceedingly  rare;  the  number  of 
prisoners  has  decreased  from  20,833  in  1878  to  12,178  in  1893. 
Convictions  for  theft  and  perjury  decrease  in  the  same  ratio 
as  crimes  against  the  person.  But  England  is  precisely  the 
country  where  modern  penal  theories  have  had  the  least  in- 
fluence, where  the  death  penalty  is  frequently  appHed,  and  where 
the  other  punishments  are  extremely  severe." 

So  much  then  for  criminal  statistics.  If  they  show  anything, 
surely  the  coincidence  of  the  rise  and  fall  of  crimes  in  harmony 


CAPITAL  PUNISHMENT  /  i6i 

with  the  stringency  or  the  reverse  of  the  "sanction"  with  whjcli .  - 
they  are  menaced  is  remarkable.  If  it  is  legitimate  to  maintain 
a  logical  connection  between  them,  then  we  may  infer  that  the 
casuaUty  of  capital  punishment  divides  itself  into  two  channels. 
First,  it  does  directly  deter  those  tempted  to  commit  the  actual 
crime  of  murder;  and,  secondly,  indirectly  its  existence  per- 
meates through  society  and  diminishes  crime.  , - — 

As  to  the  first  of  these  results,  its  direct  action.  Taking  the 
three  types  of  homicide  mentioned  above  as  those  whose  present 
retribution  is  capital  punishment,  surely  the  perpetrators  of 
such  acts  are  the  most  amenable  to  the  terms  of  the  penalty. 
ThemanjiaJiQ-- deliberately  use^  a^-  see4=«t-4>,aisaau.da^..^  "ot  be^ 
cause^JaLs_^b>efit.  i&.jabtMl£il-.Ri9re.  surely  than  by  the  instrtj,- 
mentality  of  the  knife  or  the  bullet,  but  for  *tKe^  obviojLil  pur-. 
pose  of  screening  himself  from  discovery  and  its  overwhelming- 
consequences.  This  type  of  criminal  is  not  only  a  murderer  but 
a  coward. 

But  are  we  then  to  eliminate  the  reason  for  his  cowardice? 

Baron  Garofalo  cites^  case  whjch  came  to  his  personal  ob- 
s^rvatTyni  '\^"hlffh    ^^"pf>^^pg    ^    rr>nrrpfp    inngi-ratinn    of    the   direq^  * 

effect    of    the    capitaL.4i£nal^ A    man    from    hi\    hnnse    >;^w    V)ig 

enem^TwaEiglln^yn  the  st^^^^  ^"^  in  pn  ^cc-^f^  r>f  rapr^  g^^'7?rfj 
his  rifle  andppinted  it  at  his  foe.  He  took  aim  and  was  just 
abofif  to  plull  the  trigger  whenji£_j|^as  seen  to  lower  his  weapoa, 
saying,  '%e  Taw  has  re-established  the  death  penalty.''  As  a 
matter  of  fact  only  deliberate  murders  as  distinct  from  such 
sudden  homicides  were  punishable  by  death,  but  in  this  case  the 
existence  of  the  death  penalty  undoubtedly  saved  a  human  life. 
Turning  to  our  second  class  of  crimes  punishable^  with  death, 
such  as  robberv.  or  burp^layy  f,pnRnmtrLa.tPfl  with  murder,  cai'i-_ 
not  the  extreme  rarity  of  such  cases  in  England  In  comparison 
with  othercountrlfi  h'^  />V.rifn/^fp«-ic^.i  -^^  ^i^^.  dircci  (income  of 
Tlie  judicious  severity  of  the  law?  Snch  crimen  arc  ahnost  in— 
variably  committed  by  the  professional  criminal,  the  recidivist. 
He  is  awaFe  fha't  if"he  is  caught,  his  sentence  after  what  is 
Jyrobably  repeated  conviction,  will  be_^a_Ji2Jig,jiuey-pethapA.. fifteen 
"years.    The  conclusion  is  obvious.     The  chance  of  the  life  sen- 


i62  SELECTED    ARTICLES 

tence.  representing -20  y-ears,  .will  not  deter  the  desperado  who, 
unless  he  kills  to  avoid  capture  is  doomed  to  a  sentence  of  prac- 
tically the.same-^oportions. 

As  to  our  third  class  of  homicide,  wherein  a  reckless  disre- 
gard of  human  life  is  manifested,  such  as  bomb-throwing, 
train-wrecking,  or  baby-farming,  even  the  "humanitarian"  or 
"reformatory"  school  should  shrink  from  decre'asing  the  penalty 
for  a  crime  which  most  of  all  evinces  a  callous  disregard  for 
human  life.  Are  we  to  "educate"  such  monsters  to  a  sense  of 
pity,  whose  avarice  outweighs  life  itself  in  the  scales? 

Rather  let  us  extirpate  them,  though  the  death-penalty  has 
in  their  case  proved  no  deterrent. 

The  indirect  effects  of  capital  punishment  obviously  it  is 
a  difficult  matter  to  gauge.  But  that  the  idea  of  its  existence 
in  the  minds  of  the  general  public  is  of  substantial  value  there 
can  be  no  doubt.  At  any  rate  in  this  respect  we  may  perhaps 
see  the  concrete  result  by  a  comparison  of  the  general  criminal 
figures  of  the  United  Kingdom  and  the  continent  as  exemplified 
above.  But  apart  from  this,  the  fact  that  the  state  has  the 
supreme  power  to  take  away  life  must  surely  reinforce  the 
gravity  of  other  penalties  in  the  eyes  of  malefactors. 

The  professional  criminal  knows  when  plotting  a  fresh  crime 
that  this  time  it  may  be  a  long  sentence,  but  he  is  also  cognisant 
that  beyond  this  there  is  yet  the  most  potent  weapon  of  all  in 
the  hands  of  the  law. 

Still  it  is  subjectively  on  the  criminal  and  objectively  on  the 
public  as  to  the  consequences  ensuing  from  its  non-existence 'that 
the  greatest  arguments  for  its  existence  hinge. 

And  this  brings  one  to  the  third  and  latest  theory  of  penology, 
of  whose  tenets  in  England  Sir  Robert  Hunter  and  Judge  Wills 
have  been  the  most  prominent  exponents.  The  dogma  of  this 
school  in  reality  springs  from  a  revulsion  from  the  reformatory 
ideas  at  the  close  of  the  nineteenth  century.  Testing  the  in- 
vestigations of  Lambreso,  Ferri,  and  other  theorists  of  the 
Italian  school,  and  rejecting  their  conclusions  as  to  an  anthro- 
pological criminal  type  as  unsound,  the  most  modern  English 
school  have  taken  up  the  threads  where  the  reformatory  school 


CAPITAL  PUNISHMENT  (     163 

had  pushed  their  conclusions  no  further.  Those  penologists 
who  designed  to  solve  the  question  of  crime  by  the  reform  of  the 
criminal,  when  they  found  such  a  solution  impossible,  attempted 
no  other  settlement.  The  latest  school,  going  on  where  the 
other  school  left  off  and  accepting  the  fact  of  impossibility  of 
reformation,  lay  down  that  crime  must  be  grappled  with,  if  not 
by  the  education  subjectively  of  the  criminal,  yet  if  necessary 
at  his  expense  and  for  the  benefit  of  the  public.  So  the  logical 
end  of  their  creed  is  elimination ;  the  natural  evolutionary  proc- 
ess by  which  those  unfitted  or  incapable  of  adapting  themselves 
to  their  environment  must  drop  out. 

This  principle  then  involves  two  premises.  First,  that  the 
criminal  is  incapable  of  improvement,  and  secondly,  the  wel- 
fare of  the  law-abiding  public  is  not  to  be  sacrificed  to  the  in- 
terests of  the  individual. 

With  regard  to  the  possibility  of  reformation,  the  world-wide 
results  of  the  vogue  of  reformatory  theory  show  that  acting  on 
the  class  of  the  more  serious  criminals  that  theory  has  proved 
itself  a  failure. 

The  "recidivist,"  that  individual  criminal  type  whose  increase 
has  so  insistently  demanded  a. solution  of  the  problem  of  crime, 
has  everywhere  grown  in  numbers.  In  Austria  the  number  of 
reconverted  prisoners  to  total  conviction  amounted  to  45  per 
cent.     In  France  the  percentage  was  46. 

Belgium,  held  up  by  Mr.  Heath  as  a  beneficial  example  of  the 
abolition  of  the  death  penalty,  is  second  in  magnitude  on  the 
list,  her  recidivists  numbering  49  per  cent.,  topped  only  by  Italy 
with  a  percentage  of  55  per  cent.  It  is  with  this  flotsam  of 
humanity  that  measures  of  reform  have  to  deal  and  the  high 
percentage  which  speaks  of  convictions  of  the  same  individual, 
recurring  again  and  again,  gives  the  measure  of  their  success. 

Let  us  take  again  another  northern  population,  which  Mr. 
Heath  has  cited  as  an  example  to  us  in  its  administration  of  the 
highest  penalty  known  to  the  law,  namely  Sweden.  Only  in  ex- 
ceptionally grave  cases  is  the  death  penalty  inflicted,  he  is  in- 
formed. But,  supposing  his  advocacy  of  the  leniency  displayed 
.in  that  country  to  be  correct,  we  must  be  prepared  for  the  devo- 


i64  SELECTED    ARTICLES 

lution  of  methods,  similar  at  least  to  those  in  vogue  there  at 
present,  in  substitution  for  what  we  employ  as  matters  stand. 
In  Sweden  criminals  convicted  and  sentenced  for  life,  which  it 
TT  presumed  would  include  all  prisoners  who  would  otherwise 
have  suffered  the  death  penalty,  are  released  after  a  short 
period  of  good  conduct  on  condition  that  they  find  a  patron,  a 
"guarantor  of  their  gt^od  coiuluci,  and  also  subject  to  the  proviso 
'that  should  tliey  even  misconduct  iheniselves  again,  they  will  be 
r^tegated  to  penal  servitude  for  ctcv. 

And  what  are  the  amazing  results  J*.  Iii_spite  of  the  in- 
ducements to  reform  and  the  terrible  sanction  imposed  on  sub^ 
sequent  recidivism,  75  per  cent,  of  these  so  released,  do  fall 
again,  and  return  again  to  gaol.  Is  this  the  kind  of  system 
"even  from  the  point  of  view  of  the  offender,  that  the  reforma- 
tory school  would  wish  us  to  adopt  in  lieu  of  our  own? 

The  fact  is  that  there  is  mentally  a  true  criminal  type,  even 
though  the  physical  type  cannot  be  predicated.  Drink  and  pov- 
erty may  be  the  environment  in  which  the  bacillus  of  crime 
has  the  most  favourable  opportunity  of  hatching  out,  but  just 
as  the  theory  of  evolution  is  referable  to  man  as  to  the  rest 
of  the  animal  kingdom,  so  the  correlative  theory  of  atavism 
must  inevitably  also  apply.  Heredity  and  atavism  between 
them  have  produced  the  criminal  recidivist,  the  throw-back  in 
the  evolution  of  mankind. 

Granting  then  that  reformation  is  out  of  the  question,  are 
we  not  to  continue  and  say  that  the  interests,  and  even  the 
being  of  the  criminal,  are  to  be  sacrificed  for  the  welfare  of 
the  public?  Surely  if  the  first  premise  is  correct,  the  second 
necessarily  follows.  The  only  assumption  on  which  the  giv- 
ing of  fresh  opportunity  or  mitigation  of  penalty  rests,  is 
that  of  promise  of  good  conduct  or  reform  in  the  future.  If  the 
fulfilment  of  such  promise  is  refused  or  rendered  impossible  by 
the  criminal,  then  the  interests  of  his  other  fellow  individuals, 
the  public,  are  paramount.  But  the  question  may  be  asked : 
Cannot  the  interests  of  the  latter  be  preserved  even  with  the 
abolition  of  the  death  penalty?  And  herein  lies  the  root  of 
the  matter.     You  cannot  abolish  the  death  penalty  without  also 


CAPITAL  PUNISHMENT  165         / 

abolishing  the  sentence  of  imprisonment  for  life.  The  agitation 
which  owes  its -origin  to  a  humanitarian  shrinkiag!I!5EoSLlWitr  * 
fing^^~period  to  human  life,  however  ciebased.  will  inevitably 
be  directed  attain st  a  substitute  of  perpetual  impfj,<^r>nmeni- 
Such  has_  been_.jlic  _j:ase  in  Sweden.  In  England  it  is  well 
known  after  a  period  the  "lifer"  i&  released,   . , 

In  Italy  he  getg  nut  mnrh  ftnnner  even  than  here.  Criminals 
flourish  in  that  rniiiptry  who  hnvf^£ommitted  as  manv  as  three 
murders.  A  murderer  there  has— £ven  been  known  to  boa^t 
of  his  immunity  from  the  ^raffnld     ^  — -— 

A^ain,   apart   from  the   daiigcjl-tQ  -the  public- Qi_a_j;epetition    _ 
of   homicHe~by  the   same   criminal,   the    fact  of   the  serious   re-^ 
suit  oi  his  SHlargement  must   nor  l)c  nverlooked.     Once  again 
releasee!,  the"  forces  oF heredity  regain  their  full  scope,,  and  the      ; 
serious  consequences  can  be  made  plain.     .Statistics  have  shown      1 
that  as  many  as  roughly  25  per  cent,  of  criminals  have  recened 
the  criminal  taint  in  their  blood.     Garofalo.  as  an  instance,  c:te> 
the    notorious"  Vukc    family    which    numbered    200    thieves    and 
assassins,    288    idiots,    and    90    prostitutes    descended    from    the 
same    source    during    75    years.      Their    common    ancestor    was 
a  drunkard.     Are  we  to  risk  the  accrescence  of   such   a  cohort 
of  criminals  to  preserve  a  life  incapable  of  reform,  merely  for 
a   humanitarian    sentiment   which    contradicts    the    principles    of.  j 
ages?     Or    shall    we    waste    money    on    "educating"    such    sub- 
jects, whilst  innocent  children  lack  instruction,  and  worked  out 
old  veterans    starve   for   lack   of   old-age   pensions?     It  is   the 
duty  of  a  wise  legislation  to  look  to  the  future,  and  not  least 
should  this  be  so  in  the  science  of  criminology.     In  doing  so, 
the   state  must  once   for  all  choose  between  the  two  theories, 
the    comparatively    modern    ideas    of    the    reformatory    school, 
or  the  views  of  the  still  more  recent  school,  which,  while  utilis- 
ing the  researches  of  its   rival,  bases  its  logic  on  the  real  na- 
ture of  the  criminal,   and  does  not   shrink   from   adopting  the 
elementary  and  original  foundations  of  justice.     "The  law  was 
added  because  of  transgressions." 

The  latest  school,  to  carry  its  theory  to  its  conclusions,  de- 
mands elimination,  and  the  isolation  of  the  criminal   from  so- 


i66  SELECTED    ARTICLES 

ciety.  It  aims  not  at  vindictive  punishment,  nor  so  much  to 
accomplish  its  object  by  deterrence,  but  as  prevention  through 
a  denial  of  fresh  opportunities  of  misconduct.  Its  action  is 
thorough.  It  clears  out  the  criminal  growth,  root  and  branch. 
No  seed  from  it  can  afterwards  be  propagated. 

Such  elimination  where  human  life,  present  or  future,  is 
at  stake,  can  only  be  accomplished  by  perpetual  imprisonment 
or  death.  As  to  which  is  the  end  more  merciful  it  is  for  the 
abolitionists  of  the  death  penalty  to  say. 


Westminster  Review.  170:325-9.     September,  1908. 
Modern  Penology  and  the  Punishment  of  Death.     Carl  Heath. 

Humanitarians  like  myself  are  so  well  accustomed  to  the 
severe  animadversions  of  those  who  regard  all  humane  pleas 
as  sentimental,  that  it  is  refreshing  to  meet  with  so  temperate, 
and,  on  the  whole,  fair-minded  an  opponent  as  Mr.  Advocate 
Ingram. 

The  truth  of  his  charge  that  the  article '  which  he  so  ably 
attacked,  was  very  largely  confined  to  the  deterrent  nature  of 
the  death  penalty,  and  did  not  deal  with  the  question  of  capi- 
tal punishment  from  the  standpoint  of  the  criminal  problem 
as  a  whole,  must  be  admitted.  It  is  one  of  the  unfortunate 
factors  of  a  controversy  of  any  kind  that  you  cannot  say  every- 
thing at  once.  And  the  defined  purpose  of  the  article  in  ques- 
tion was  simply  to  draw  attention  to  the  experiences  of  other 
nations  in  regard  to  this  particular  penalty,  the  penalty  of 
death. 

However,  I  am  quite  ready  to  meet  Mr.  Ingram  on  his  own 
ground,  and  will  proceed  to  deal  with  his  points. 

The  "original  theory  of  punishment"  (if  there  ever  was  one) 
may  have  been  expressed  by  the  lex  talionis,  but  from  the  Mid- 
dle Ages,  at  any  rate,  the  penalty  of  death  has  not  been  ap- 
plied on  any  such  basis.  Any  and  every  kind  of  crime  has 
been  subject  to  this  penalty.  In  the  days  of  the  "Tudor  King- 
dom of  Heaven,"  and  of  good  Queen  Bess,  to  cite  an  exam- 


CAPITAL  PUNISHMENT  167 

pie,  rogues  and  petty  thieves  were  sent  to  the  gallows  at  the 
rate  of  three  or  four  hundred  a  year.  And  in  Georgian  times 
the  penalty  of  the  rope  was  applied  to  nearly  a  hundred  crimes 
from  the  theft  of  five  shillings  upwards. 

Penalism,  in  fact,  until  the  French  Revolution,  was  for  the 
masses  little  else  than  a  huge  system  of  oppression  and  of  vio- 
lence. But  from  that  philosophic  period  onward,  and  with  the 
growth  of  democracy,  terrorism  is  gradually  replaced  by  pun- 
ishments supposed  to  fit  the  crimes  committed.  Mr.  Ingram, 
I  think,  is  not  justified  in  speaking  of  the  aim  of  penalism  at 
the  close  of  the  i8th  century  and  early  19th,  as  being  founded 
on  the  idea  of  deterrence.  Its  aim  was  mainly  to  punish  the 
wrong-doer  according  to  his  deed,  and  such,  in  fact,  is  still 
the  case,  witness  the  protest  only  recently  made  by  so  anti- 
humanitarian  a  penologist  as  Sir  Robert  Anderson  against  the 
continued  prevalence  in  our  penal  system  of  the  "punishment 
for  crime  theory."  Deterrence,  pure  and  simple,  as  a  peno- 
logical theory  or  defence  of  penalties  inflicted  on  wrong-doers, 
has  a  more  modern  basis,  combined  as  it  is  in  modern  laws 
with  reformatory  efforts.  A  very  good  illustration  of  this 
combination  is  afforded  by  Mr.  Gladstone's  prison  bill,  which 
aims  at  combining  intimidation  by  striking  penalties  with  re- 
formatory methods  by  means  of  preventive  sentences  of  un- 
limited length. 

It  is,  of  course,  a  mistake  to  suppose  that  the  humanita- 
rian school  confines  its  attacks  on  the  death  sentence  to  the  ques- 
tion of  its  validity  as  a  deterrent.  In  considering  the  deterrent 
values  of  penalties,  the  humanitarian  would  find  much  to  urge 
against  capital  punishment.  And  even  the  man  in  the  street, 
who,  we  are  told,  does  not  read  statistics,  must  be  aware  that 
an  average  of  fourteen  executions  for  140  murders  per  annum 
disposes  of  the  supposed  "indissoluble  connection  between  mur- 
der and  the  hangman's  rope." 

But  the  non-deterrent  character  of  the  death  penalty  is 
but  an  item  in  the  objection  of  humanitarians  to  this  penalty. 
The  fundamental  objection,  strangely  enough,  Mr.  Ingram  ig- 
nores.    Now  this  fundamental  objection  arises  from  a  different 


i68  SELECTED    ARTICLES 

conception  of  the  meaning  and  cause  of  crime,  and  consequent- 
ly a  different  conception  of  the  right  treatment  of  criminals. 
/  I  cannot  better  express  it  than  in  the  words  of  Dr.  Douglas 
Morrison,  in  his  introduction  to  the  English  translation  of  Prof. 
Enrico  Ferri's  "Criminal  Psychology."  "Crime,"  he  says,  "is  a 
product  of  the  adverse  individual  and  social  conditions  of  the 
community  as  a  whole,  and  the  only '  effective  way  of  grappling 
with  it,  is  to  do  away,  as  far  as  possible,  with  the  causes  from 
which  it  springs."  It  is  from  this  point  of  view  that  the  de- 
mand is  made  for  really  reformative  methods — (which  I  might 
here  remark,  have  not  failed,  for  as  much  as  they  have  never 
been  tried  beyond  the  very  elementary  stage  of  the  Borstal 
system) — and  where  reformative  methods  are  impossible,  a 
permanent  detention  under  reasonably  humane  and  scientific 
conditions. 

It  is  this  modern  view  of  crime  which  makes  penalties  of 
the  capital  order  hopelessly  out  of  date,  and  penal  servitude 
preferable,  however  badly  it  may  at  present  be  organised,  be- 
cause it  presents  the  possibility  of  gradual  transformation  with 
the  growth  of  new  ideas. 

Mr.  Ingram  thinks  that  you  "cannot  abolish  the  death  pen- 
alty without  abolishing  also  imprisonment  for  life."  This  is 
only  relatively  a  fact.  As  long  as  imprisonment  is  simply  pun- 
ishment, society  justly  objects  to  its  being  unlimited.  But 
once  this  semi-theological  idea  is  replaced  by  a  real  application 
of  reformative  treatment,  or  simply  humane  treatment,  where 
reform  is  hopeless,  there  is  no  reason  why  the  hopeless  crimi- 
nal, if  such  exist,  should  not  be  permanently  detained  than  the 
hopelessly  insane.  No  one  raises  objection  to  the  detention 
of  the  insane,  because  modern  methods  of  dealing  with  such 
are  free  from  the  stupid  brutalities  of  punishment  which  ob- 
tained right  up  to  the  19th  century.  Our  Bicetres  for  the  in- 
y     sane  have  long  since  disappeared,  but  our  penal  Bicetres  remain. 

I  am  glad  that  Mr.  Ingram  frankly  admits  that  the  "logi- 
cal end  of  the  creed,"  which  he  supports,  "is  elimination."  The 
impossibility  of  that  creed  has  been  ably  exposed  by  Prof.  Fer- 
ri,    who    points    out    that    if    adopted — "it    would    be    necessary 


CAPITAL  PUNISHMENT  169 

in  Italy  to  execute  at  least  one  thousand  persons  every  year, 
and  in  France  nearly  two  hundred  and  fifty,  in  place  of  the 
annual  seven  or  eight." 

And  who  is  to  decide  on  the  ethical  right  of  eliminating 
this  or  that  criminal?  Vast  numbers  of  crimes  in  Europe  are 
the  product  of  the  majority  views  of  social  policy.  All  the 
crimes  against  property,  and  the  violence  to  which  they  give 
rise,  who  shall  say  where  the  sympathy  of  another  age  will 
lie?  With  the  law-abiding  and  governing  classes  or  the  classes 
which  are  the  product  of  legal  privilege  and  economic  dominance. 

And  even  if,  in  our  complicated  society,  we  could  lay  down 
clear  and  sure  precepts  of  social,  political,  and  economic  mo- 
rality, is  it  not  almost  infantile  to  suppose  that,  by  any  man- 
ner of  means  we  could  "clear  out  the  criminal  growth  root, 
and  branch,"  short  of  clearing  out  all  those  causes  which  give 
rise  to  anti-social  action  which  alone,  when  conventional  mo- 
rality condemns,  we  call  crime.  I  do  not  propose  to  follow 
Mr.  Ingram  in  his  statistics,  because,  as  he  points  out  him- 
self, there  are  so  many  other  considerations,  and  statistics  do 
not  carry  us  far  one  way  or  the  other.  But  his  own  are  curious. 
He  gives  us  341  as  the  number  of  murders  taking  place  in  Italy 
in  1863.  He  would  have  us  believe  that  the  annual  average 
is  now  about  4,000.  There  is  certainly  something  lacking  here. 
In  France,  he  shows  that  murders  rose  in  56  years  (1828-84) 
from  197  to  234,  and  infanticide  from  102  to  194.  The  death 
sentence  was  in  force  for  these  crimes  all  the  time,  and  many 
public  executions  took  place,  so  that  I  am  at  a  loss  to  under- 
stand how  these  figures  support  his  views. 

How  Baron  Garofalo  obtained  the  English  statistics  which 
Mr.  Ingram  quotes  I  do  not  know,  but  the  Judicial  Statistics 
for  1906,  which  the  Home  Office  published  this  year,  give  the 
results  for  the  last  fifty  years  in  striking  fashion.  And  while 
it  is  true  that,  allowing  for  the  increase  of  population,  crimes 
of  all  kinds  tend  to  decrease,  this  surely  is  due  to  the  increase 
in  social  well  being,  education,  and  humanity,  and  certainly 
not  to  the  severity  of  punishment.  In  1829,  twenty-four  per- 
sons   were   publicly   executed    in    London    for   crimes   of    theft 


170  SELECTED    ARTICLES 

and  forger}-.  These  crimes  are  menaced  to-day  with  penalties 
far  less  severe  than  formerly,  yet  theft  and  forgery  have  not 
increased,  indeed,  on  Mr.  Ingram's  own  showing,  the  very 
reverse  is  the  case.  To  quote  Dr.  Morrison  again:  "If  the 
penal  laws'  of  the  past  teach  us  anything,  they  teach  us  that 
crime  cannot  be  put  down  by  mere  severity." 

I  confess  I  am  more  amused  than  impressed  by  Garofalo's 
story  of  the  man  who,  "in  an  access  of  rage,"  was  about  to 
shoot  his  enemy  when,  at  the  moment  of  pulling  the  trigger, 
he  suddenly  recollected  the  supposed  re-introduction  of  the 
death  penalty.  I  wonder  if  Garofalo  believed,  or,  for  the  mat- 
ter of  that  if  Mr.  Ingram  believes,  in  the  psychologcal  possi- 
bility of  the  associated  access  of  rage  with  the  wonderful  ac- 
cess of  memory  and  prompt  action  thereon. 

One  other  point.  The  recidivist  problem  is  one  facing  all 
penal  reformers,  though  it  is  true  it  is  not  one  that  trenches  much 
on  the  problem  of  capital  punishment.  The  homicide  rarely 
repeats  his  offence.  But  I  submit  that  there  is  a  better  way 
of  dealing  with  this  problem  than  that  of  elimination — a  way 
more  consonant  with  science,  social  ethics,  and  common  jus- 
tice. Let  us  at  least  try  the  extension  of  the  Borstal  and  kin- 
dred systems,  and  for  the  small  percentage  which  must  ulti- 
mately be  classed  as  hopeless  let  us  treat  such  degeneracy  as 
we  treat  insanity.  For  what  we  chiefly  mean  by  insanity,  as 
far  as  society  is  cc^ncerned.  is  a  state  of  socially,  mentally,  and 
morally  unfit.     Now  there  are  large  numbers  of  people  in  Europe 

/  who  are  legally  recognised  as  insane,  many  hopelessly  so.  If 
we   eliminate   the   supposed   hopeless   degenerate   by   legal    exe- 

'    cution,    why   not   the    supposed    hopelessly   insane.      In    fact,    it 

^  were  surely  wiser  to  put  an  end,  physically  speaking,  to  these 
latter  unfortunates  whose  spirits  are  not  burdened  by  evil 
acts.  Psychical  science  may  not  yet  have  determined  belief 
in  the  survival  of  human  personality,  but  It  is  certainly  an 
open    question.      x\nd    since    human    society    is    responsible    for 

.  these  wrecked  products,  whom  we  designate  criminals,  it  is 
surely  both  foolish  and  contem.ptible  to  shelve  the  difficulty 
created  by  these  people  by  taking  their  lives.     And  even  if  it 


CAPITAL  PUNISHMENT  171 

could  be  shown,  and  I  submit  that  in  the  present  state  of  our 
knowledge  it  cannot  be  shown,  that  by  the  lethal  chamber  or 
other  method  we  could  finally  dispose  of  these  miserable  crea- 
tures, what  is  to  be  said  of  the  ethical  reaction  on  society,  the 
callous  spirit  which  the  constant  judicial  slaughter  which  would 
be  necessary  if  the  method  were  to  be  effective,  would  engen- 
der? Mr.  Ingram  refers  to  Sir  Robert  Hunter  and  Judge  Wills. 
Perhaps  he  means  Sir  Robert  Anderson  and  Sir  Arthur  Wills, 
late  Justice  of  the  High  Court,  whose  recent  writings  on  these 
questions  in  the  Nineteenth  Century  and  After,  and  elsewhere, 
have  attracted  attention.  Sir  Arthur  Wills  is  a  well-known 
judge,  but  I  question  if  he  would  imagine  that  he  had  founded 
a  new  penological  school.  He  has,  unfortunately,  given  his 
support  to  the  re-actionary  proposals  of  the  Ex-Police  Commis- 
sioner, Sir  Robert  Anderson.  Sir  Robert  Anderson,  in  his 
book,  "Crime  and  Criminals,"  is  at  some  pains  to  point  out  that 
he  is  dealing  with  crimes  against  property,  and  not  with  those 
against  the  person.  His  whole  conception  of  crime,  its  cause 
and  its  treatment,  is  vitiated  by  a  peculiar  jumble  of  narrow 
theology  and  social  prejudice,  and  an  absolute  lack  of  any  in- 
telligent understanding  of  the  social  and  humanitarian  move- 
ment of  to-day,  which  movement,  I  venture  to  assert,  is,  in  this 
question  of  criminality,  half  a  century  ahead  of  Sir  Robert 
Anderson.  To  call  his  theories  and  those  of  Mr.  Justice  Wills 
the  latest  in  penology  is  truly  odd.  For  Sir  Robert  Anderson, 
like  Mr.  Ingram,  fondly  imagines  that  you  can  "clear  out  the 
criminal  growth,"  b}^  the  simple  process  of  locking  up — (Mr. 
Ingram  would  prefer  eliminating) — the  caught  criminal. 

I  suggest,  with  all  respect,  that  Mr.  Ingram  extend  his  studies 
from  the  criminal  to  the  social  problem,  and  he  will  then  un- 
derstand why  it  is  that  in  this  particular  question  of  the  re- 
tention of  the  public  executioner,  every  advanced  party  in  Eu- 
rope is  against  him,  and  every  re-actionary,  every  bureaucratic 
influence  is  on  his  side, — why,  for  example,  the  Socialists  of 
France  support  President  Fallieres  in  his  refusal  to  use  the 
guillotine  and  the  Black  Hundred  of  the  Tzar  rejoice  over  800 
executions  in  a  single  year. 


14  DAY  USE 

RETURN  TO  DESK  FROM  WHICH  BORROWED 

LOAN  DEPT. 

RENEWALS  ONLY— TEL.  NO.  642-3405 

This  book  is  due  on  the  last  date  stamped  below,  or 

on  the  date  to  which  renewed. 

Renewed  books  are  subject  to  immediate  recall. 


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